FAMILY COURT OF AUSTRALIA
| LAY & WINTER | [2008] FamCA 400 |
| FAMILY LAW – CHILDREN - With whom a child lives - Relocation FAMILY LAW – PROPERTY - Settlement in relation to marriage FAMILY LAW – SPOUSAL MAINTENANCE - Interim |
| Family Law Act 1975 (Cth) Child Support (Assessment) Act 1989 (Cth) Family Law (Shared Parental Responsibility) Act 2006 (Cth) |
| Goode and Goode (2006) FLC 93-286 B and B; Family Law Reform Act 1995 (1997) FLC 92-755 Mazorski v Albright (2007) 37 Fam LR 518 AMS v AIF: AIF v AMS (1999) FLC 92-852 A v A: Relocation Approach (2000) FLC 93-035 H v L (2000) FLC 93-036 U v U (2002) FLC 93-112 Bolitho v Cohen (2005) FLC 93-224 M and S (2007) FLC 93-313 Bale v Jenkins [2007] FamCA 809 Godfrey and Sanders [2007] FamCA 102 Taylor and Barker (2007) 37 Fam LR 461 |
| APPLICANT: | Ms Lay |
| RESPONDENT: | Mr Winter |
| FILE NUMBER: | SYF | 3583 | of | 2006 |
| DATE DELIVERED: | 6 June 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 21 February, 21 and 22 May 2007, 8 February 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richards |
| SOLICITOR FOR THE APPLICANT: | Abrams & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Dimock Family Lawyers |
Orders
The Husband and the Wife have equal shared parental responsibility, in consultation with each other, for the long term care, welfare and development of the children of the marriage O born on … April 2000 and R born on … January 2004.
The Wife be permitted forthwith to relocate the children to live on the Gold Coast in Queensland.
The Wife be responsible for the day to day care, welfare and development of each child when they live with her.
The Husband be responsible for the day to day care, welfare and development of each child when they live with him.
The children live with the Husband during each school term: -
5.1.one weekend per calendar month from after school on Thursday until before school on the following Monday in Queensland; and
5.2one weekend per calendar month from 7:00 pm on Friday until 4:00 pm Sunday in Sydney; and
5.3 at the Husband’s election, for one week in each school term from after school on Friday until before school the following Friday, such week to be as agreed between the parties at least four weeks prior to the commencement of each school term and failing agreement to be for the 4th week of each school term;
The children live with the Husband during each school holiday period:-
6.1for one half of each school holiday period, such half being as agreed between the parties at least four weeks prior to the commencement of each school holiday period, and, failing agreement, for the first half of each school holiday period in each even numbered year and the second half of each school holiday period in each odd numbered year; and
6.2for an additional week in the Christmas school holiday period,…
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- Lay and Winter [2008] FamCA 400
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- [2008] FamCA 400
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CaseChat Overview and Summary
The court was required to determine arrangements for the children's day-to-day care, welfare, and development, including the Wife's relocation with the children to the Gold Coast, Queensland. Additionally, the court needed to make orders regarding the sale of the former matrimonial home and the distribution of its proceeds, as well as the division of other assets and liabilities.
O'Ryan J ordered that the Husband and Wife have equal shared parental responsibility for the children's long-term care. The Wife was permitted to relocate the children to the Gold Coast, with specific arrangements for the children's time with each parent during school terms and holidays, ensuring regular contact for the Husband. The court also ordered the sale of the former matrimonial home, with the proceeds to be distributed with 51.73 per cent to the Wife and 48.27 per cent to the Husband after payment of sale costs and the mortgage. The Husband was to retain sole ownership of certain business interests and superannuation, while the Wife was to receive spousal maintenance of $1,200 per week for twelve weeks following her relocation. Specific orders were also made concerning the K Superannuation Fund, directing 100 per cent of any splittable payment otherwise payable to the Wife to be paid to the Husband.
Orders
Orders of the court
1.
The Husband and the Wife have equal shared parental responsibility, in consultation with each other, for the long term care, welfare and development of the children of the marriage O born on … April 2000 and R born on … January 2004.
2.
The Wife be permitted forthwith to relocate the children to live on the Gold Coast in Queensland.
3.
The Wife be responsible for the day to day care, welfare and development of each child when they live with her.
4.
The Husband be responsible for the day to day care, welfare and development of each child when they live with him.
5.
The children live with the Husband during each school term: -
5.1. one weekend per calendar month from after school on Thursday until before school on the following Monday in Queensland; and
5.2 one weekend per calendar month from 7:00 pm on Friday until 4:00 pm Sunday in Sydney; and
5.3 at the Husband’s election, for one week in each school term from after school on Friday until before school the following Friday, such week to be as agreed between the parties at least four weeks prior to the commencement of each school term and failing agreement to be for the 4th week of each school term;
6.
The children live with the Husband during each school holiday period:-
6.1 for one half of each school holiday period, such half being as agreed between the parties at least four weeks prior to the commencement of each school holiday period, and, failing agreement, for the first half of each school holiday period in each even numbered year and the second half of each school holiday period in each odd numbered year; and
6.2 for an additional week in the Christmas school holiday period, such week to be as agreed between the parties and failing agreement to be at the end of the first half of the holidays in each even numbered year and at the beginning of the second half of the holidays in each odd numbered year;
7.
Subject to orders 5 and 6 hereof each child otherwise live with the Wife.
8.
When the children are living with the Wife, the Husband have unrestricted communication with each child by letter, telephone, email or any other electronic means.
9.
When the children are living with the Husband, the Wife have unrestricted communication with each child by letter, telephone, email or any other electronic means.
10.
To assist in the implementation of the Orders:-
10.1 The Husband will collect the children from school or on seven days notice, the Wife will take the children to Gold Coast airport to collect the Husband and take them to the Husband’s accommodation at the commencement of his time with them pursuant to Order 5.1 hereof and the Husband will return the children to school or on seven days notice the Wife will collect the children from the Husband’s accommodation at the conclusion of his time with them pursuant to Order 5.1 hereof;
10.2 The Husband will collect the children from the Wife at Sydney airport and return the children to the Wife at Sydney airport at the commencement and conclusion of his time with the children pursuant to Order 5.2 hereof;
10.3 School holiday periods will be taken to commence at 9:00 am on the day after the last day of school and will cease at 5:00 pm on the day immediately before school resumes;
10.4 The Wife will deliver the children to the Husband’s residence at the commencement of their school holiday time with him and the Husband will return the children to the Wife’s residence at the conclusion of their school holiday time with him;
10.5 Pupil-free days at the beginning or end of school holiday periods will be considered as part of school holiday periods;
10.6 If the children are spending time with the Husband on a weekend which is immediately followed by a public holiday on the Monday, then the children will remain living with the Husband until before school the following morning;
11.
In the event that the children are not living with the Wife on any of the days below, the Wife will spend time with the children as follows:-
11.1 from 9:00 am on 19 December to 1:00 pm on 26 December in each odd numbered year;
11.2 from 5:00 pm on the day prior to Mother’s Day or the Mother’s birthday until 5:00 pm that day;
11.3 if Easter does not fall in the first term school holidays, the Wife will spend time with the children in each even numbered year from 5:00 pm on Easter Thursday to 9:00 am the following Tuesday;
11.4 on either of the children’s birthdays from after school to 7:00 pm if a school day or if a non-school day, from 2:00 pm to 9:00 am the following day.
12.
In the event that the children are not living with the Husband on any of the days below, the Husband will spend time with the children as follows:-
12.1 from 9:00 am on 19 December to 1:00 pm on 26 December in each even numbered year;
12.2 from 5:00 pm on the day prior to Father’s Day or the Husband’s birthday until 5:00 pm that day;
12.3 if Easter does not fall in the first term school holidays, the Husband will spend time with the children in each odd numbered year from 5:00 pm on Easter Thursday to 9:00 am the following Tuesday;
12.4 on either of the children’s birthdays from after school to 7:00 pm if a school day or if a non-school day, from 2:00 pm to 9:00 am the following day.
13.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Pursuant to s 79 of the Family Law Act:
14.
Within seven days of the date of these Orders, the Husband and the Wife do all acts and things and execute all deeds, documents, instruments and writings necessary to sell the former matrimonial home at Sin the State of New South Wales being more fully described in Folio Identifier …by public auction at a price upon which the parties agree or failing such agreement at a price recommended by the auctioneer.
15.
To facilitate the conduct of the sale of the former matrimonial home: -
15.1 The former matrimonial home will be placed in the hands of a reputable real estate agent practising as an auctioneer within the local area and if the parties cannot agree on the agent to be employed, the Wife will nominate three such agents and the Husband will select one and if any further dispute arises as to the appointment of an agent, then the agent will be appointed by the President for the time being of the Australian Property Institute (New South Wales Division).
15.2 All costs incurred by the parties in appointing the agent will be shared equally between the parties and in the event that one of the parties advances all of the costs in that respect then he or she will be reimbursed from the proceeds of sale as a cost of sale before a distribution of the net proceeds between the Husband and the Wife takes place.
15.3 The parties will appoint a solicitor to act in relation to the sale and if the parties cannot agree on the solicitor to be appointed, the Wife will nominate three such solicitors and the Husband will select one and if any further dispute arises as to the appointment of a solicitor, then a solicitor will be appointed by the President for the time being of the Law Society of New South Wales
15.4 The parties will initiate such work as is recommended by the agent to prepare the house for sale and the Husband will pay the costs associated with that work provided that he will be reimbursed from the proceeds of sale as a cost of sale before a distribution of the net proceeds between the Husband and the Wife takes place.
15.5 The Husband and the Wife will execute all such documents as may be necessary to authorise the auctioneer to conduct such auction and thereafter the Husband and the Wife will sign all documents and expeditiously carry out all necessary acts to sell the home at such auction and to complete the sale if sold at such auction.
15.6 The reserve price of such auction will be such amount which is agreed upon by the Husband and the Wife and failing agreement in that regard the Husband and the Wife will accept the recommendation of the auctioneer.
15.7 The Husband pay to the auctioneer any sum reasonably required for advertising expenses in relation to the auction provided that he will be reimbursed from the proceeds as a cost of sale before a distribution of the net proceeds between the Husband and the Wife takes place.
15.8 The Husband and Wife will attend at the auction sale and in the event that the former matrimonial home is not sold at such auction then the Husband and the Wife will negotiate with the highest bidder and in the event that an offer is made below the agreed reserve price and the parties do not agree that it should be accepted, then the former matrimonial home will be listed for sale by auction every two months until sold, such subsequent auctions to be conducted by the same auctioneer but at each such subsequent auction the reserve price will be 10 per cent less than the reserve price at the previous auction.
15.9 Both the Husband and the Wife will be entitled to bid at the auction.
15.10 The Husband and the Wife will sign all necessary documents and will expeditiously carry out such necessary acts required to sell the former matrimonial home at either auction.
16.
Upon completion of the sale of the former matrimonial home pursuant to Orders 14 and 15 hereof, the proceeds of sale will be paid in the following manner and priority: -
16.1 In payment of agents fees and commission due on the sale;
16.2 In payment of legal costs on the sale;
16.3 In payment of any amounts paid by the Husband or the Wife pursuant to Orders 15.2, 15.4 and 15.7 hereof;
16.4 In discharge of the first registered mortgage to the Westpac Bank secured over the home;
16.5 In payment of 51.73 per cent of the balance then remaining to the Wife;
16.6 In payment of 48.27 per cent of the balance then remaining to the Husband.
17.
Pending the sale of the former matrimonial home pursuant to these Orders, the Husband will: -
17.1 vacate and give up possession of the former matrimonial home not less than seven days prior to the date for completion of the sale of the former matrimonial home;
17.2 pay the mortgage and loan repayments to the Westpac Bank as and when they fall due and should any arrears (plus interest) be outstanding as at the date of settlement of the sale the former matrimonial home then the arrears (plus interest) will be paid by the Husband simultaneously upon settlement of the sale of the former matrimonial home.
17.3 be responsible for and liable to insure the former matrimonial home for full replacement value and pay all rates, taxes, insurances and other utilities in respect of the former matrimonial home including outgoings such as water, electricity, gas and telephone.
18.
Pending completion of the sale of the former matrimonial home pursuant to these Orders the Husband will:
18.1 be entitled to occupy former matrimonial home to the exclusion of the Wife;
18.2 provide a key to the selling agent;
18.3 allow inspection of former matrimonial home at all reasonable times as requested by the selling agent;
18.4 say or do nothing to hinder or prevent the sale of former matrimonial home being effected;
18.5 ensure that the former matrimonial home is in a neat and clean condition and well presented for sale purposes at the time of inspection by the selling agent and prospective purchasers.
19.
Pending completion of the sale of the former matrimonial home pursuant to these Orders:-
19.1 each party is restrained by injunction from selling, transferring, encumbering, disposing of or otherwise dealing with his or her interest in the former matrimonial home without the written consent of the other party;
19.2 each party is restrained by injunction from increasing the current balances outstanding under the Westpac Bank loans and in this respect the parties shall notify the Westpac Bank of the effect of this Order and provide the Westpac Bank with a copy of these Orders within seven days of the date of these Orders.
20.
It be noted that the Husband and the Wife have reached agreement in relation to the distribution of items of personalty in his/her possession and control and the delivery of such items to the other party.
21.
Subject to Order 20 of these Orders the Husband is entitled to retain sole legal and beneficial ownership of the undermentioned assets to the exclusion of the Wife:
21.1 all of his interests in the W Partnership, W Trust, W Commercial Partnership and W Commercial Trust; and
21.2 all other items of property and personalty including motor vehicles, bank accounts, money, shares, jewellery and personal effects presently in his possession, custody or control; and
21.3 any entitlements under any superannuation fund of which he is or has been a member, including any interest he has in the K Superannuation Fund.
22.
The Husband will do all acts and things, execute all deeds, documents, instruments and writings and pay all money necessary to indemnify and keep indemnified the Wife from and against all claims, actions, suits or demands that may be made against the Wife in relation to or arising out of: -
22.1 any alleged debt to the Husband’s parents owing by the Husband and/or the Wife and any interest thereon;
22.2 any tax liability of the Wife for current, past or future years arising out of any alleged distribution of income to her by the professional practice group of the Husband;
22.3 any tax liability arising out of either party’s interests in the K Superannuation Fund.
23.
The Husband and the Wife shall be and remain liable for any other debts in his or her own name at the date of these orders and in this respect shall do all acts and things, execute all deeds, documents, instruments and writings and pay all money necessary to indemnify and keep indemnified the other from and against all claims, actions, suits or demands that may be made against the other in relation to or arising out of any such liability.
24.
Pursuant to s 90MT(1)(b) of the Family Law Act whenever the Trustee of the K Superannuation Fund makes a splittable payment out of the Wife's interest in the Fund, the Trustee shall pay to the Husband or his administrators, executors, beneficiaries, heirs or assigns, 100 per cent of the splittable payment otherwise payable to the Wife and that there shall be a corresponding reduction in the entitlement of the Wife in the Fund.
25.
Order 24 shall have effect from the operative time.
26.
The operative time for these Orders is the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee of the Fund.
27.
Having been accorded procedural fairness, as the Husband and the Wife are the Trustees of the Fund, in relation to the making of this Order, this Order binds the Trustee of the Fund.
28.
The Trustee of the Fund, the Husband and the Wife, in accordance with the obligations set out under the Family Law Act and the Family Law (Superannuation) Regulations 2001 shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the Husband in accordance with this Order.
29.
Any costs, fees or charges imposed by the Trustee to give effect to this Order are to be paid by the Husband.
30.
Upon compliance with Orders 24 to 29 inclusive of these Orders, the Wife do all acts and things and execute all deeds, documents, instruments and writings necessary to resign as a Trustee of the K Super Fund.
Spouse Maintenance
31.
The Husband pay to the Wife by way of spousal maintenance the sum of $1,200 per week until the expiration of twelve weeks from the date the Wife relocates to reside on the Gold Coast in Queensland the first amount to be paid within seven days of the date of this order.
Child Support
32.
The application for a departure from the Child Support Agency’s Administrative Assessment of Child Support issued on 25 June 2006 in respect of the Child Support period 1 July 2006 to 8 September 2007 be adjourned for further hearing.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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