Lay and Winter
[2008] FamCA 400
•6 June 2008
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, 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;
Subject to orders 5 and 6 hereof each child otherwise live with the Wife.
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.
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.
To assist in the implementation of the Orders:-
10.1The 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;
10.2The 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;
10.3School 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;
10.4The 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;
10.5Pupil-free days at the beginning or end of school holiday periods will be considered as part of school holiday periods;
10.6If 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;
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:-
11.1from 9:00 am on 19 December to 1:00 pm on 26 December in each odd numbered year;
11.2from 5:00 pm on the day prior to Mother’s Day or the Mother’s birthday until 5:00 pm that day;
11.3if 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;
11.4on 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.
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:-
12.1from 9:00 am on 19 December to 1:00 pm on 26 December in each even numbered year;
12.2from 5:00 pm on the day prior to Father’s Day or the Husband’s birthday until 5:00 pm that day;
12.3if 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;
12.4on 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.
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:
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.
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).
15.2All 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.
15.3The 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
15.4The 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.
15.5The 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.
15.6The 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.
15.7The 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.
15.8The 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.
15.9Both the Husband and the Wife will be entitled to bid at the auction.
15.10The 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.
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: -
16.1In payment of agents fees and commission due on the sale;
16.2In payment of legal costs on the sale;
16.3In payment of any amounts paid by the Husband or the Wife pursuant to Orders 15.2, 15.4 and 15.7 hereof;
16.4In discharge of the first registered mortgage to the Westpac Bank secured over the home;
16.5In payment of 51.73 per cent of the balance then remaining to the Wife;
16.6In payment of 48.27 per cent of the balance then remaining to the Husband.
Pending the sale of the former matrimonial home pursuant to these Orders, the Husband will: -
17.1vacate 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;
17.2pay 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.
17.3be 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.
Pending completion of the sale of the former matrimonial home pursuant to these Orders the Husband will:
18.1be entitled to occupy former matrimonial home to the exclusion of the Wife;
18.2provide a key to the selling agent;
18.3allow inspection of former matrimonial home at all reasonable times as requested by the selling agent;
18.4say or do nothing to hinder or prevent the sale of former matrimonial home being effected;
18.5ensure 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.
Pending completion of the sale of the former matrimonial home pursuant to these Orders:-
19.1each 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;
19.2each 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.
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.
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:
21.1all of his interests in the W Partnership, W Trust, W Commercial Partnership and W Commercial Trust; and
21.2all 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
21.3any entitlements under any superannuation fund of which he is or has been a member, including any interest he has in the K Superannuation Fund.
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: -
22.1any alleged debt to the Husband’s parents owing by the Husband and/or the Wife and any interest thereon;
22.2any 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;
22.3any tax liability arising out of either party’s interests in the K Superannuation Fund.
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.
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.
Order 24 shall have effect from the operative time.
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.
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.
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.
Any costs, fees or charges imposed by the Trustee to give effect to this Order are to be paid by the Husband.
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
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
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.
IT IS NOTED that publication of this judgment under the pseudonym Lay & Winter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 3583 of 2006
| Ms Lay |
Applicant
And
| Mr Winter |
Respondent
REASONS FOR JUDGMENT
Before me for hearing are applications for parenting orders, property settlement, spouse maintenance and departure from a child support assessment. The proceedings were commenced by application filed on behalf of Ms Lay who I shall refer to as the Wife. The Respondent is Mr Winter who I shall refer to as the Husband.
At the outset I should record a number of matters. First I am embarrassed that there has been a significant delay since the conclusion of the hearing and the delivery of this judgment. Second, I am concerned about the costs of the case given that in relation to the financial proceedings I have found that the parties have net assets of $231,958.
The Husband was born in December 1961 and the Wife was born in August 1964. The parties were married in August 1998 and separated on 19 February 2006.
There are two children of the marriage O born in April 2000 and R born in January 2004.
In the parenting proceedings the primary proposal of the Wife is that the children ordinarily reside with her on the Gold Coast in Queensland and spend time with the Husband in Sydney. The primary proposal of the Husband is that both parents reside in Sydney and the children spend equal time with each parent. The Wife is prepared to continue to reside in Sydney if I determined that the children should ordinarily reside in Sydney. The Husband is not prepared to reside in Queensland. The Wife contends that there are significant economic advantages to her if she resided in Queensland. The Husband contends that there are significant economic advantages to him if he resides in Sydney.
I had the benefit of a Family Report and the Family Consultant identified the issues as follows:
·Whether the children should be allowed to relocate to Queensland with their mother.
·Whether or not it is in the children’s interests to spend equal time with each parent.
·How the children will spend time and communicate with the parent with whom they do not live.
·The viability of the children maintaining a close relationship with their father if they relocate with their mother to Queensland.
·The impact of the unresolved financial dispute on the parental conflict and the competing proposals of each parent.
The Family Consultant made the following recommendations:
47.It is recommended that the parents have equal shared parental responsibility for the children.
48.It is recommended that the children remain in Sydney.
49.It is recommended that the children live with the mother and spend significant and substantial time with the father as follows: each alternate weekend from after school Friday until the commencement of school on the Monday and each Wednesday from after school/day care until the commencement of school/day care Thursday morning.
50.It is recommended that, in 18 months time, taking into consideration the children’s increased age and developmental needs, a week about arrangement be considered.
51.It is recommended that, in the event that either parent’s current or future work commitments impact on their availability to care for the children, the children spend time with the other parent as first option.
52.It is recommended that the parents equally share school holidays and spend time with the children on special occasions such as birthdays, Mother/Father Days and Christmas.
53.It is recommended that the children be allowed unrestricted communication with each of their parents.
The Family Consultant was not cross-examined in relation to her report.
There is an issue as to the net assets of the parties. The Husband contends they have assets of a net value of $161,048. The Wife contends they have assets of a net value of $1,171,154.70. Both parties have incurred significant legal costs. There are approximately 56 items in the list of assets and liabilities and I have had to spend an inordinate amount of time considering the property settlement applications.
In the property proceedings the Husband submits that the contribution based entitlements expressed as a percentage of the net assets of the parties should be assessed as to 70 per cent to him and 30 per cent to the Wife. The Husband submits that there should then be an adjustment to the contribution based entitlements expressed as a percentage of the net assets of the parties to reflect consideration of the matters in s 79(4)(d),(e),(f) and (g) of the Family Law Act1975 (Cth) of 15 per cent to the Wife.
It is not entirely clear but I understand that the Wife submits that the contribution based entitlements expressed as a percentage of the net assets of the parties should be assessed as to 35-40 per cent to the Wife and 60-65 per cent to the Husband. The Wife submits that there should then be an adjustment to the contribution based entitlements expressed as a percentage of the net assets of the parties to reflect consideration of the other matters in s 79 of the Family Law Act of 20-25 per cent to the Wife.
The Wife seeks the following:
1.Within seven (7) days of the date of these Orders, the parties do all acts and things and sign all documents necessary to place the former matrimonial home at [S] in the State of New South Wales being more fully described in Folio Identifier […] (“the home”) on the market for sale by public auction at a price upon which the parties agree or failing such agreement at a price recommended by the auctioneer and do all acts and things and sign all documents necessary for the sale of the home by public auction.
2.To facilitate the conduct of the sale: -
2.1 The home will be placed in the hands of a reputable real estate agent practising as an auctioneer within the local area. If the parties cannot agree on the agent to be employed, the wife will nominate three (3) such agents and the husband will select one (1). 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) (“the agent”).
2.2 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 prior to the distribution of the net proceeds between the parties.
2.3 The parties will appoint a solicitor to act in relation to the sale. If the parties cannot agree on the solicitor to be appointed, the wife will nominate three (3) such solicitors and the husband will select one (1). 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 NSW.
2.4 The parties will initiate such work as is recommended by the agent to prepare the house for sale and will share equally in the costs associated with that work provided that if one of the parties advances all of the costs for such work then he or she will be reimbursed from the proceeds of sale as a cost of sale prior to distribution of the net proceeds between the parties.
2.5 The husband and the wife will execute all such documents as may be necessary to authorise the auctioneer to conduct such auction. Thereafter the husband and the wife will sign all documents and shall expeditiously carry out all necessary acts to sell the home at such auction and to complete the sale if sold at such auction.
2.6 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 agree to accept the recommendation of the auctioneer.
2.7 The parties agree to pay to the auctioneer any sum reasonably required for advertising expenses in relation to the auction. If one of the parties advances all of the said expenses he or she 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.
2.8 The husband and wife will attend at the auction sale and in the event that the property is not sold at such auction then the husband and the wife will negotiate with the highest bidder. 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 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% less than the reserve price at the previous auction.
2.9 Both the husband and the wife will be entitled to bid at the auction.
2.10 The husband and the wife will sign all necessary documents and will expeditiously carry out such necessary acts required to sell the house at either auction.
3.An order that upon completion of the sale of the home pursuant to Orders 1 or 2 of these Orders, the proceeds of sale will be paid in the following manner and priority: -
3.1 In payment of agents fees and commission due on the sale;
3.2 In payment of legal costs on the sale;
3.3 In payment of any taxes and/or duties arising by virtue of the sale;
a) 3.4 In discharge of the first registered mortgage to WESTPAC Bank secured over the home;
b) 3.5 In discharge of the balance owing on all loans secured over the home;
3.6 By way of reimbursement to either party in accordance with Orders 2.2 and 2.4;
3.7 In payment to the wife of the balance then remaining.
4.Pending the sale of the home pursuant to these Orders, the husband will: -
4.1 vacate the home within 7 days of the date of these Orders;
4.2 pay the mortgage and loan repayments to WESTPAC Bank (hereafter referred to as “The WESTPAC loans”). Should any arrears (plus interest) be outstanding as at the date of settlement of the sale then the arrears (plus interest) will be paid by the husband simultaneously upon settlement of the sale of the home.
4.3 be responsible for and liable to insure the property for full replacement value and shall pay all rates, taxes, insurances and other utilities in respect of the home but excluding outgoings such as water, electricity, gas, telephone and any other services, for which the wife will be responsible.
5.Pending the sale of the home pursuant to these Orders, that the wife will:
5.1 be entitled to occupy the home to the exclusion of the husband;
5.2 provide a key to the agent;
5.3 allow inspection of the home at all reasonable times as requested by the agent;
5.4 Say nothing to hinder or prevent the sale being effected;
5.5 Ensure the home is in a neat and clean condition and well presented for sale purposes at the time of inspection by the agent and prospective purchasers.
6. Pending settlement of the sale of the home pursuant to these Orders:-
6.1 each party is restrained by injunction from selling, transferring, encumbering, disposing of or otherwise dealing with his or her interest in the home without the written consent of the other party;
6.2 each party is restrained by injunction from increasing the current balances outstanding under the WESTPAC loans and in this respect the parties shall notify WESTPAC Bank of the effect of this Order and provide WESTPAC Bank with a copy of these Orders within 7 days of the date of these Orders.
7.Within 7 days of the date of these Orders the husband is entitled to remove the contents of the home apart from the items set out in schedule “A” to these Orders which the wife will retain.
8.Subject to Order 9 of these Orders the husband is entitled to retain sole legal and beneficial ownership of the undermentioned assets to the exclusion of the wife:
8.1 all of his interests in the [W] Partnership, [W] Trust, [W] Commercial Partnership and [W] Commercial Trust (“the [professional] practice group”); and
8.2 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
8.3 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.
9.In the event that the [professional] practice group recovers any monies from a former partner, [Mr R] in New Zealand, in relation to claims by the [professional] practice group against the said [Mr R] for funds for which he allegedly failed to account to the [professional] practice group, the husband shall cause an amount equal to 65% of the net amount of his share of any such funds recovered to be paid to the wife within 7 days of receipt by him of the said funds and in this respect:-
9.1 the husband shall within 7 days of the date of these Orders:-
(a)advise the wife of the name and address of the solicitors acting in relation to the said claim;
(b)authorise the said solicitor to provide the wife with any information regarding the status of the said claim that she might at any time request in writing and provide a copy of the said authority to the wife;
9.2 the husband shall keep the wife advised of progress in relation to any such claim;
9.3 the husband shall notify the wife immediately upon receipt by him of his share of any monies so realised and thereafter account to the wife in accordance with this Order for 65% of the net amount so recovered.
10.The wife is entitled to retain sole legal and beneficial ownership of the undermentioned assets to the exclusion of the husband:
10.1 all other items of property and personalty including motor vehicles, bank accounts, money, shares, jewellery and personal effects presently in her possession, custody or control; and
10.2 any entitlements under any superannuation fund of which she is or has been a member, including any interest she has in the [K] Superannuation Fund.
11.The husband shall indemnify and keep indemnified the wife from and against any liability in relation to: -
11.1 any alleged debt to his parents owing by the husband and/or the wife and any interest thereon;
11.2 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 ;
11.3 any tax liability arising out of either party’s interests in the [K] Superannuation Fund.
12.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 indemnify and hold harmless the other from any liability in relation thereto.
13.Pursuant to Section 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% 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.
14. Order 13 shall have effect from the operative time.
15.The operative time for these Orders is the 4th business day after the day on which a sealed copy of these Orders is served on the Trustee of the Fund.
16.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.
17.The Trustee of the Fund, the husband and the wife, in accordance with the obligations set out under the Family Law Act 1975 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.
18.Any costs, fees or charges imposed by the Trustee to give effect to this Order are to be paid by the husband.
19.That upon compliance with Orders 13 to 18 of these Orders, the wife do all acts and things and sign all documents necessary to resign as a Trustee of the [K] Super Fund.
Spouse Maintenance
20. The husband pay the wife the sum of $1,200 per week by way of spousal maintenance until the earlier of:-
20.1 the wife resuming occupation of the home pursuant to Order 5;
20.2 the wife relocating to reside in Queensland pursuant to any order of this Court or with the husband’s written consent;
20.3 the wife remarrying;
20.4 the wife entering into a permanent de facto relationship;
20.5 the death of the wife.
21.The periodic sum referred to in Order 20 hereof be varied on 1 July each year (“the review date”) to such sum as shall be determined by multiplying the spousal maintenance being paid on the review date by the fraction N/B where “N” is the Consumer Price Index (All Groups Sydney) published by the Australia Bureau of Statistics (“CPI”) in respect of the quarter year immediately preceding the review date and “B” is the CPI in respect of the quarter year ending twelve months prior to the review date.
Child Support
22.Pursuant to S.115 (c) of the Child Support (Assessment) Act (“the CSA Act”), there be:-
22.1 an Order departing from the Child Support Agency’s Administrative Assessment of Child Support issued on 25 June 2006 from the Child Support Agency in respect of the Child Support period 1 July 2006 to 8 September 2007 (the “Assessment”).
22.2 an order that the Assessment be departed from and that the husband’s adjusted child support be in the sum of $300 per child per week.
22.3 an order that the periodic sum referred to in order 22.2 hereof be varied on 1 July each year (“the review date”) by the inflation factor as defined in the CSA Act.
22.4 an order that by way of further departure from the Assessment and in addition to the periodic sum referred to in order 22.2 above:
22.4.1The husband shall continue to pay all school fees and all associated educational costs for: -
(a) [O] at such school as the parties may agree; and
(b)[R] at such day care and thereafter at such school as the parties may agree,
such costs to include uniforms, books and extra curriculum activities until the children have completed their secondary school education.
22.4.2The husband shall continue to provide private health care cover for the children at the current level of cover until they have each completed their secondary school education
.22.4.3The husband shall continue to pay medical, dental, orthodontal and other health costs for the children not otherwise covered by insurance until they have each completed their secondary school education.
c) Parenting orders
23The father and the mother 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 children”).
24.The mother be permitted forthwith to relocate with the children to live in Queensland.
25.The mother be responsible for the children’s day to day care, welfare and development whilst they live with her.
26.The father be responsible for the children’s day to day care, welfare and development when spend time with him.
27.The children spend time with and communicate with the father as follows:
27.1 During school term time: -
(a) one weekend per month from after school on Thursday until before school on Monday in Queensland; and
(b) one weekend per month from 7pm on Friday until 4pm Sunday in Sydney;
(c) at the father’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 4 weeks prior to the commencement of each school term and failing agreement to be for the 4th week of each school term;
27.2 During school holiday periods:-
(a) for one half of each school holiday period, such half 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 even numbered years and the second half of each school holiday period in odd numbered years; and
(b) 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 even numbered years and at the beginning of the 2nd half of the holidays in odd numbered years;
27.3 Unrestricted communication by letter, telephone, email or any other electronic means;
27.4 As otherwise agreed between the parties from time to time
d)28. To assist in the implementation of the Orders:-
28.1 The father will collect the children from school or on 7 days notice, the mother will take the children to Gold Coast airport to collect the father and take them to the father’s accommodation at the commencement of his time with them pursuant to Order 27.1(a) and the father will return the children to school or on 7 days notice the mother will collect the children from the father’s accommodation at the conclusion of his time with them pursuant to Order 27.1(a);
28.2 The father will collect the children from the mother at Sydney airport and return the children to the mother at Sydney airport at the commencement and conclusion of his time with the children pursuant to Order 27.1(b);
28.3 School holiday periods will be taken to commence at 9 am on the day after the last day of school and will cease at 5.00pm on the day immediately before school resumes;
28.4 The mother will deliver the children to the father’s residence at the commencement of their school holiday time with him and the father will return the children to the mother’s residence at the conclusion of their school holiday time with him;
28.5 Pupil-free days at the beginning or end of school holiday periods will be considered as part of school holiday periods;
28.6 If the children are spending time with the father on a weekend which is immediately followed by a public holiday, then the children will remain living with the father until before school the following morning;
29.In the event that the children are not living with the mother on any of the days below, the mother will spend time with the children as follows:-
29.1 from 9:00am on 19 December to 1:00pm on 26 December in odd numbered years;
29.2 from 5:00pm on the day prior to Mother’s Day or the mother’s birthday until 5:00pm that day;
29.3 if Easter does not fall in the first term school holidays, the mother will spend time with the children in even numbered years from 5:00pm on Easter Thursday to 9:00am the following Tuesday;
29.4 on either of the children’s birthdays from after school to 7:00pm if a school day or if a non-school day, from 2:00pm to 9:00am the following day.
30.In the event that the children are not living with the father on any of the days below, the father will spend time with the children as follows:-
30.1 from 9:00am on 19 December to 1:00pm on 26 December in even numbered years;
30.2 from 5:00pm on the day prior to Father’s Day or the father’s birthday until 5:00pm that day;
30.3 if Easter does not fall in the first term school holidays, the father will spend time with the children in odd numbered years from 5:00pm on Easter Thursday to 9:00am the following Tuesday;
30.4 on either of the children’s birthdays from after school to 7:00pm if a school day or if a non-school day, from 2:00pm to 9:00am the following day.
31.That, in the event that either party refuses or neglects to execute any document or documents whatsoever pursuant to these Orders the Registrar of the Court be appointed pursuant to Section 106A to execute such documents in the name of such party and do all acts and things necessary to give validity to the operation of the said documents.
32.An order that the husband pay the wife’s costs of and incidental to these proceedings.
In the event that the Wife is not permitted to relocate to the Gold Coast, she seeks the following orders: -
PROPERTY
1.Within seven (7) days of the date of these Orders, the parties do all acts and things and sign all documents necessary to place the former matrimonial home at [S] in the State of New South Wales being more fully described in Folio Identifier […] (“the home”) on the market for sale by public auction at a price upon which the parties agree or failing such agreement at a price recommended by the auctioneer and do all acts and things and sign all documents necessary for the sale of the home by public auction.
2.To facilitate the conduct of the sale: -
2.1 The home will be placed in the hands of a reputable real estate agent practising as an auctioneer within the local area. If the parties cannot agree on the agent to be employed, the wife will nominate three (3) such agents and the husband will select one (1). 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) (“the agent”).
2.2 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 prior to the distribution of the net proceeds between the parties.
2.3 The parties will appoint a solicitor to act in relation to the sale. If the parties cannot agree on the solicitor to be appointed, the wife will nominate three (3) such solicitors and the husband will select one (1). 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 NSW.
2.4 The parties will initiate such work as is recommended by the agent to prepare the house for sale and will share equally in the costs associated with that work provided that if one of the parties advances all of the costs for such work then he or she will be reimbursed from the proceeds of sale as a cost of sale prior to distribution of the net proceeds between the parties.
2.5 The husband and the wife will execute all such documents as may be necessary to authorise the auctioneer to conduct such auction. Thereafter the husband and the wife will sign all documents and shall expeditiously carry out all necessary acts to sell the home at such auction and to complete the sale if sold at such auction.
2.6 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 agree to accept the recommendation of the auctioneer.
2.7 The parties agree to pay to the auctioneer any sum reasonably required for advertising expenses in relation to the auction. If one of the parties advances all of the said expenses he or she 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.
2.8 The husband and wife will attend at the auction sale and in the event that the property is not sold at such auction then the husband and the wife will negotiate with the highest bidder. 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 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% less than the reserve price at the previous auction.
2.9 Both the husband and the wife will be entitled to bid at the auction.
2.10 The husband and the wife will sign all necessary documents and will expeditiously carry out such necessary acts required to sell the house at either auction.
3.An order that upon completion of the sale of the home pursuant to Orders 1 and 2 of these Orders, the proceeds of sale will be paid in the following manner and priority: -
3.1 In payment of agents fees and commission due on the sale;
3.2 In payment of legal costs on the sale;
3.3 In payment of any taxes and/or duties arising by virtue of the sale;
3.4 In discharge of the first registered mortgage to WESTPAC Bank secured over the home;
3.5 In discharge of the balance owing on all loans secured over the home;
3.6 By way of reimbursement to either party in accordance with Orders 2.2 and 2.4;
3.7 In payment to the wife of the balance then remaining.
4.Pending the sale of the home pursuant to these Orders, the husband will: -
4.1 vacate the home within 7 days of the date of these Orders;
4.2 pay the mortgage and loan repayments to WESTPAC Bank (hereafter referred to as “The WESTPAC loans”). Should any arrears (plus interest) be outstanding as at the date of settlement of the sale then the arrears (plus interest) will be paid by the husband simultaneously upon settlement of the sale of the home.
4.3 be responsible for and liable to insure the property for full replacement value and shall pay all rates, taxes, insurances and other utilities in respect of the home but excluding outgoings such as water, electricity, gas, telephone and any other services, for which the wife will be responsible.
Pending the sale of the home pursuant to these Orders, that the wife will:
5.1 be entitled to occupy the home to the exclusion of the husband;
5.2 provide a key to the agent;
5.3 allow inspection of the home at all reasonable times as requested by the agent;
5.4 Say nothing to hinder or prevent the sale being effected;
5.5 Ensure the home is in a neat and clean condition and well presented for sale purposes at the time of inspection by the agent and prospective purchasers.
Pending settlement of the sale of the home pursuant to these Orders:-
6.1 each party is restrained by injunction from selling, transferring, encumbering, disposing of or otherwise dealing with his or her interest in the home without the written consent of the other party;
6.2 each party is restrained by injunction from increasing the current balances outstanding under the WESTPAC loans and in this respect the parties shall notify WESTPAC Bank of the effect of this Order and provide WESTPAC Bank with a copy of these Orders within 7 days of the date of these Orders.
7Within 7 days of the date of these Orders the husband is entitled to remove the contents of the home apart from the items set out in schedule “A” to these Orders which the wife will retain.
8.Subject to Order 9 of these Orders the husband is entitled to retain sole legal and beneficial ownership of the undermentioned assets to the exclusion of the wife:
8.1 all of his interests in the [W] Partnership, [W] Trust, [W] Commercial Partnership and [W] Commercial Trust (“the [professional] practice group”); and
8.2 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
8.3 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.
9.In the event that the [professional] practice group recovers any monies from a former partner, [Mr N] in New Zealand, in relation to claims by the [professional] practice group against the said [Mr N] for funds for which he allegedly failed to account to the [professional] practice group, the husband shall cause an amount equal to 65% of the net amount of his share of any such funds recovered to be paid to the wife within 7 days of receipt by him of the said funds and in this respect:-
9.1 the husband shall within 7 days of the date of these Orders: -
(a)advise the wife of the name and address of the solicitors acting in relation to the said claim;
(b)authorise the said solicitor to provide the wife with any information regarding the status of the said claim that she might at any time request in writing and provide a copy of the said authority to the wife;
9.2 the husband shall keep the wife advised of progress in relation to any such claim;
9.3 the husband shall notify the wife immediately upon receipt by him of his share of any monies so realised and thereafter account to the wife in accordance with this Order for 65% of the net amount so recovered.
10.The wife is entitled to retain sole legal and beneficial ownership of the undermentioned assets to the exclusion of the husband:
10.1 all other items of property and personalty including bank accounts, money, shares, jewellery and personal effects presently in her possession, custody or control; and
10.2 any entitlements under any superannuation fund of which she is or has been a member, including any interest she has in the [K] Superannuation Fund.
11.The husband shall indemnify and keep indemnified the wife from and against any liability in relation to: -
11.1 any alleged debt to his parents owing by the husband and/or the wife and any interest thereon;
11.2 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;
12.3 any tax liability arising out of either party’s interests in the [K] Superannuation Fund.
12.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 indemnify and hold harmless the other from any liability in relation thereto.
13.Pursuant to Section 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% 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.
14.Order 13 shall have effect from the operative time.
15.The operative time for these Orders is the 4th business day after the day on which a sealed copy of these Orders is served on the Trustee of the Fund.
16.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.
17.The Trustee of the Fund, the husband and the wife, in accordance with the obligations set out under the Family Law Act 1975 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.
18.Any costs, fees or charges imposed by the Trustee to give effect to this Order are to be paid by the husband.
19.That upon compliance with Orders 13 to 18 of these Orders, the wife do all acts and things and sign all documents necessary to resign as a Trustee of the [K] Super Fund.
Spouse Maintenance
20.The husband pay the wife the sum of $1,200 per week by way of spousal maintenance until the earlier of:-
e) 20.1 the wife remarrying;
f) 20.2 the wife entering into a permanent de facto relationship;
g) 20.3 the death of the wife.
provided that the obligation to pay the said spouse maintenance will abate during the period that the wife is residing in the home pursuant to Order 5.1 and the husband is making the payments pursuant to Order 4.
21.The periodic sum referred to in order 20 hereof be varied on 1 July each year (“the review date”) to such sum as shall be determined by multiplying the spousal maintenance being paid on the review date by the fraction N/B where “N” is the Consumer Price Index (All Groups Sydney) published by the Australia Bureau of Statistics (“CPI”) in respect of the quarter year immediately preceding the review date and “B” is the CPI in respect of the quarter year ending twelve months prior to the review date.
Child Support
22.Pursuant to S.115 (c) of the Child Support (Assessment) Act (“the CSA Act”), there be:-
22.1 an Order departing from the Child Support Agency’s Administrative Assessment of Child Support issued on 25 June 2006 from the Child Support Agency in respect of the Child Support period 1 July 2006 to 8 September 2007 (the “Assessment”).
22.2 an order that the Assessment be departed from and that the husband’s adjusted child support be in the sum of $300 per child per week.
22.3 an order that the periodic sum referred to in order 22.2 hereof be varied on 1 July each year (“the review date”) by the inflation factor as defined in the CSA Act.
22.4 an order that by way of further departure from the Assessment and in addition to the periodic sum referred to in order 22.2 above:
22.4.1The husband shall continue to pay all school fees and all associated educational costs for: -
(a)[O] at such school as the parties may agree; and
(b)[R] at such day care and thereafter at such school as the parties may agree,
such costs to include uniforms, books and extra curriculum activities until the children have completed their secondary school education.
22.4.2The husband shall continue to provide private health care cover for the children at the current level of cover until they have each completed their secondary school education
.22.4.3The husband shall continue to pay medical, dental, orthodontal and other health costs for the children not otherwise covered by insurance until they have each completed their secondary school education.
PARENTING ORDERS
23.The father and the mother 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 children”).
24.The mother be responsible for the children’s day to day care, welfare and development whilst they live with her.
25.The father be responsible for the children’s day to day care, welfare and development when spend time with him.
26.The children spend time with and communicate with the father as follows:
26.1 During school term time: -
(a)each alternate weekend from after school on Thursday until before school on Monday; and
(b)each other Thursday from after school to before school on Friday;
26.2 During school holiday periods for one half of each school holiday period, such half 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 even numbered years and the second half of each school holiday period in odd numbered years;
26.3 Unrestricted communication by letter, telephone, email or any other electronic means;
26.4 As otherwise agreed between the parties from time to time
27. To assist in the implementation of the Orders:-
27.1 The father will collect the children from school at the commencement of his time with them pursuant to Order 26.1 and the father will return the children to school at the conclusion of his time with them pursuant to Order 26.1;
27.2 School holiday periods will be taken to commence at 9 am on the day after the last day of school and will cease at 5.00pm on the day immediately before school resumes;
27.3 The mother will deliver the children to the father’s residence at the commencement of their school holiday time with him and the father will return the children to the mother’s residence at the conclusion of their school holiday time with him;
27.4 Pupil-free days at the beginning or end of school holiday periods will be considered as part of school holiday periods;
27.5 If the children are spending time with the father on a weekend which is immediately followed by a public holiday, then the children will remain living with the father until before school the following morning;
28.In the event that the children are not living with the mother on any of the days below, the mother will spend time with the children as follows: -
28.1 from 9:00am on 19 December to 1:00pm on 26 December in odd numbered years;
28.2 from 5:00pm on the day prior to Mother’s Day or the mother’s birthday until 5:00pm that day;
28.3 if Easter does not fall in the first term school holidays, the mother will spend time with the children in even numbered years from 5:00pm on Easter Thursday to 9:00am the following Tuesday;
28.4 on either of the children’s birthdays from after school to 7:00pm if a school day or if a non-school day, from 2:00pm to 9:00am the following day.
29.In the event that the children are not living with the father on any of the days below, the father will spend time with the children as follows: -
29.1 from 9:00am on 19 December to 1:00pm on 26 December in even numbered years;
29.2 from 5:00pm on the day prior to Father’s Day or the father’s birthday until 5:00pm that day;
29.3 if Easter does not fall in the first term school holidays, the father will spend time with the children in odd numbered years from 5:00pm on Easter Thursday to 9:00am the following Tuesday;
29.4 on either of the children’s birthdays from after school to 7:00pm if a school day or if a non-school day, from 2:00pm to 9:00am the following day.
30.That the wife is permitted to move the residence of the children out of the [S] Municipality but not out of the Sydney Metropolitan Area provided that she gives to the husband at least 7 days notice of her intention to so move together with details of the new address.
31.That subject to the financial capacity of the husband the parties each do all things necessary:-
31.1 to keep [O] enrolled at the [S] Preparatory School (“[S] Prep”); and
31.2 to keep [R] enrolled at [S Preschool] and upon attaining school age to enrol [R] and keep him enrolled at [S] Prep.
32.That in the event that the husband does not have the financial capacity to keep [O] enrolled at [S] Prep or [R] enrolled at [S Preschool] or [S] Prep or in the event that the wife’s residence is outside the [S] Municipality then in relation to the schooling arrangements for the children:-
32.1 the wife will consult with the husband to endeavour to reach agreement as to the daycare/school that the children will attend;
32.2 in the event that the husband and the wife are unable to reach agreement as to the daycare/school the children will attend then they will consult with a mediator in an endeavour to reach agreement in that respect;
32.3 in the event that the parties remain unable to reach agreement in relation to the daycare/school the children will attend after counselling with a mediator, then the wife will have sole responsibility for selecting the appropriate daycare/school for the children to attend.
33.That, in the event that either party refuses or neglects to execute any document or documents whatsoever pursuant to these Orders the Registrar of the Court be appointed pursuant to Section 106A to execute such documents in the name of such party and do all acts and things necessary to give validity to the operation of the said documents.
34.An order that the husband pay the wife’s costs of and incidental to these proceedings.
In the event that the Wife is not permitted to relocate to the Gold Coast and the Husband is granted leave to file his Amended Response seeking the transfer of the home to him, the Wife seeks the following orders: -
PROPERTY
1.That within 28 days of the date of these Orders the husband will vacate the former matrimonial home at [S] in the State of New South Wales more fully described in Certificate of Title Folio Identifier […] (“the home”) and the wife will thereafter be entitled to occupy the home to the exclusion of the husband.
2.That within two years of the date of these Orders, the wife do all acts and things and sign all documents necessary to discharge the mortgage registered against the title to the home to Westpac Banking Corporation (“the Westpac Mortgage”)
3.That simultaneously upon the wife’s compliance with Order 2 of these Orders, the husband will do all acts and things and sign all documents necessary to transfer to the wife the whole of his right, title and interest in the home including signing and handing to the wife a transfer in registrable form and thereupon the wife will indemnify and keep indemnified the husband from and against all and any further liabilities in relation to the home including the Westpac mortgages, rate, taxes and other outgoings.
4.Pending the transfer of the home to the wife pursuant to these Orders, the wife will: -
4.1 pay the interest only loan repayments due in relation to the Westpac mortgage;
4.2 be responsible for and liable to insure the property for full replacement value and shall pay all rates, taxes, insurances and other utilities in respect of the home and all outgoings such as water, electricity, gas, telephone and any other services.
5.Pending the transfer of the home to the wife pursuant to these Orders:-
5.1 each party is restrained by injunction from selling, transferring, encumbering, disposing of or otherwise dealing with his or her interest in the home without the written consent of the other party;
5.2 each party is restrained by injunction from increasing the current balances outstanding in relation to the Westpac mortgage and in this respect the parties shall notify Westpac Bank of the effect of this Order and provide Westpac Bank with a copy of these Orders within 7 days of the date of these Orders.
6.On or before the transfer of the home to the wife, the husband is entitled to remove the contents of the home apart from the items set out in schedule “A” to these Orders which the wife will retain.
7.Subject to Order 8 of these Orders the husband is entitled to retain sole legal and beneficial ownership of the undermentioned assets to the exclusion of the wife:
7.1 all of his interests in the [W] Partnership, [W] Trust, [W] Commercial Partnership and [W] Commercial Trust (“the [professional] practice group”); and
7.2 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
7.3 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.
8.In the event that the [professional] practice group recovers any monies from a former partner, [Mr N] in New Zealand, in relation to claims by the [professional] practice group against the said [Mr N] for funds for which he allegedly failed to account to the [professional] practice group, the husband shall cause an amount equal to 65% of the net amount of his share of any such funds recovered to be paid to the wife within 7 days of receipt by him of the said funds and in this respect:-
8.1 the husband shall within 7 days of the date of these Orders: -
(a)advise the wife of the name and address of the solicitors acting in relation to the said claim;
(b)authorise the said solicitor to provide the wife with any information regarding the status of the said claim that she might at any time request in writing and provide a copy of the said authority to the wife;
8.2 the husband shall keep the wife advised of progress in relation to any such claim;
8.3 the husband shall notify the wife immediately upon receipt by him of his share of any monies so realised and thereafter account to the wife in accordance with this Order for 65% of the net amount so recovered.
9.The wife is entitled to retain sole legal and beneficial ownership of the undermentioned assets to the exclusion of the husband:
9.1 all other items of property and personalty including bank accounts, money, shares, jewellery and personal effects presently in her possession, custody or control; and
9.2 any entitlements under any superannuation fund of which she is or has been a member, including any interest she has in the [K] Superannuation Fund.
10. The husband shall indemnify and keep indemnified the wife from and against any liability in relation to: -
10.1 any alleged debt to his parents owing by the husband and/or the wife and any interest thereon;
10.2 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;
10.3 any tax liability arising out of either party’s interests in the [K] Superannuation Fund.
11.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 indemnify and hold harmless the other from any liability in relation thereto.
12.Pursuant to Section 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% 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.
13.Order 12 shall have effect from the operative time.
14.The operative time for these Orders is the 4th business day after the day on which a sealed copy of these Orders is served on the Trustee of the Fund.
15.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.
16.The Trustee of the Fund, the husband and the wife, in accordance with the obligations set out under the Family Law Act 1975 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.
17Any costs, fees or charges imposed by the Trustee to give effect to this Order are to be paid by the husband.
18.That upon compliance with Orders 12 to 17 of these Orders, the wife do all acts and things and sign all documents necessary to resign as a Trustee of the [K] Super Fund.
Spouse Maintenance
19.The husband pay the wife the sum of $1,200 per week by way of spousal maintenance until the earlier of:-
19.1 the wife remarrying;
19.2 the wife entering into a permanent de facto relationship;
19.3 the death of the wife.
20.The periodic sum referred to in order 19 hereof be varied on 1 July each year (“the review date”) to such sum as shall be determined by multiplying the spousal maintenance being paid on the review date by the fraction N/B where “N” is the Consumer Price Index (All Groups Sydney) published by the Australia Bureau of Statistics (“CPI”) in respect of the quarter year immediately preceding the review date and “B” is the CPI in respect of the quarter year ending twelve months prior to the review date.
Child Support
21.Pursuant to S.115 (c) of the Child Support (Assessment) Act (“the CSA Act”), there be:-
21.1 an Order departing from the Child Support Agency’s Administrative Assessment of Child Support issued on 25 June 2006 from the Child Support Agency in respect of the Child Support period 1 July 2006 to 8 September 2007 (the “Assessment”).
an order that the Assessment be departed from and that the husband’s adjusted child support be in the sum of $300 per child per week.
an order that the periodic sum referred to in order 21.2 hereof be varied on 1 July each year (“the review date”) by the inflation factor as defined in the CSA Act.
an order that by way of further departure from the Assessment and in addition to the periodic sum referred to in order 21.2 above:
21.4.1The husband shall continue to pay all school fees and all associated educational costs for: -
(a) [O] at such school as the parties may agree; and
(b) [R] at such day care and thereafter at such school as the parties may agree,
such costs to include uniforms, books and extra curriculum activities until the children have completed their secondary school education.
21.4.2The husband shall continue to provide private health care cover for the children at the current level of cover until they have each completed their secondary school education
.21.4.3The husband shall continue to pay medical, dental, orthodontal and other health costs for the children not otherwise covered by insurance until they have each completed their secondary school education.
PARENTING ORDERS
22.The father and the mother 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 children”).
23.The mother be responsible for the children’s day to day care, welfare and development whilst they live with her.
24.The father be responsible for the children’s day to day care, welfare and development when spend time with him.
25.The children spend time with and communicate with the father as follows:
25.1 During school term time: -
(a)each alternate weekend from after school on Thursday until before school on Monday; and
(b)each other Thursday from after school to before school on Friday;
25.2 During school holiday periods for one half of each school holiday period, such half 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 even numbered years and the second half of each school holiday period in odd numbered years;
25.3 Unrestricted communication by letter, telephone, email or any other electronic means;
25.4 As otherwise agreed between the parties from time to time
26. To assist in the implementation of the Orders:-
26.1 The father will collect the children from school at the commencement of his time with them pursuant to Order 25.1 and the father will return the children to school at the conclusion of his time with them pursuant to Order 25.1;
26.2 School holiday periods will be taken to commence at 9 am on the day after the last day of school and will cease at 5.00pm on the day immediately before school resumes;
26.3 The mother will deliver the children to the father’s residence at the commencement of their school holiday time with him and the father will return the children to the mother’s residence at the conclusion of their school holiday time with him;
26.4 Pupil-free days at the beginning or end of school holiday periods will be considered as part of school holiday periods;
26.5 If the children are spending time with the father on a weekend which is immediately followed by a public holiday, then the children will remain living with the father until before school the following morning;
27.In the event that the children are not living with the mother on any of the days below, the mother will spend time with the children as follows: -
27.1 from 9:00am on 19 December to 1:00pm on 26 December in odd numbered years;
27.2 from 5:00pm on the day prior to Mother’s Day or the mother’s birthday until 5:00pm that day;
27.3 if Easter does not fall in the first term school holidays, the mother will spend time with the children in even numbered years from 5:00pm on Easter Thursday to 9:00am the following Tuesday;
27.4 on either of the children’s birthdays from after school to 7:00pm if a school day or if a non-school day, from 2:00pm to 9:00am the following day.
28.In the event that the children are not living with the father on any of the days below, the father will spend time with the children as follows: -
28.1 from 9:00am on 19 December to 1:00pm on 26 December in even numbered years;
28.2 from 5:00pm on the day prior to Father’s Day or the father’s birthday until 5:00pm that day;
28.3 if Easter does not fall in the first term school holidays, the father will spend time with the children in odd numbered years from 5:00pm on Easter Thursday to 9:00am the following Tuesday;
28.4 on either of the children’s birthdays from after school to 7:00pm if a school day or if a non-school day, from 2:00pm to 9:00am the following day.
29.That the wife is permitted to move the residence of the children out of the [S] Municipality but not out of the Sydney Metropolitan Area provided that she gives to the husband at least 7 days notice of her intention to so move together with details of the new address.
30.That subject to the financial capacity of the husband the parties each do all things necessary:-
30.1 to keep [O] enrolled at the [S] Preparatory School (“[S] Prep”); and
30.2 to keep [R] enrolled at [S Preschool] and upon attaining school age to enrol [R] and keep him enrolled at [S] Prep.
31.That in the event that the husband does not have the financial capacity to keep [O] enrolled at [S] Prep or [R] enrolled at [S Preschool] or [S] Prep or in the event that the wife’s residence is outside the [S] Municipality then in relation to the schooling arrangements for the children:-
31.1 the wife will consult with the husband to endeavour to reach agreement as to the daycare/school that the children will attend;
31.2 in the event that the husband and the wife are unable to reach agreement as to the daycare/school the children will attend then they will consult with a mediator in an endeavour to reach agreement in that respect;
31.3 in the event that the parties remain unable to reach agreement in relation to the daycare/school the children will attend after counselling with a mediator, then the wife will have sole responsibility for selecting the appropriate daycare/school for the children to attend.
32. That, in the event that either party refuses or neglects to execute any document or documents whatsoever pursuant to these Orders the Registrar of the Court be appointed pursuant to Section 106A to execute such documents in the name of such party and do all acts and things necessary to give validity to the operation of the said documents.
33. An order that the husband pay the wife’s costs of and incidental to these proceedings.
The Husband now seeks the following:
Parenting Orders
1THAT the parties have equal shared parental responsibility in relation to their children, [O] born […] April 2000 now aged 7 and [R] born […] January 2004, now aged 3 (collectively referred to herein as “the children”).
2THAT each parent individually have sole responsibility for making decisions concerning other aspects of the care, welfare, development and parental responsibility of their children on a day to day basis during periods when the children are living with either of them.
3THAT the children shall live with their father as follows:
3.1 During school term time, until [R] commences full-time school, kindergarten or daycare, or until the commencement of the 2009 school year, whichever is the earlier, in accordance with Orders 1(a) and 1 (b) of the existing Orders dated 6 November, 2006.
3.2 During school term time, from the time [R] commences full-time school, kindergarten or daycare, or from the commencement of the 2009 school year, whichever is the earlier, each alternate week from the conclusion of school on Monday until the commencement of school the following Monday and such time shall commence at the conclusion of the first school day of each school term in even-numbered years, and the first Monday after the start of each school term in odd-numbered years.
3.3 For half of all New South Wales school holidays, as follows, unless otherwise agreed:
3.3.1In the first half of the school holidays in each even numbered year commencing in 2008 and each alternate year thereafter, in which case the period shall commence at 5:00pm on the last day of school term and end at 12:00 noon on the middle day of such school term holidays,
3.3.2In the second half of the school holidays in each odd numbered year commencing in 2009 and each alternate year thereafter, in which case the period shall commence at 12:00 noon on the middle day of such holidays and end at the commencement of the first day of school term or first day the child is due to attend school if day one is a pupil free day;
4THAT the children shall live with the father and mother on occasions of special significance to the children and to the parents to enable the attendance at such events including:
4.1 In the event that the children are not otherwise living with the Father on Father’s Day in accordance with these Orders then the children shall live with the Father on the weekend which includes Father’s Day from 5:00pm on the evening immediately preceding Father’s Day until 5:00pm on Father’s Day.
4.2 In the event that the children are not otherwise living with the Mother on Mother’s Day in accordance with these Orders then the children shall live with the Mother on the weekend which includes Mother’s Day from 5:00pm on the evening immediately preceding Mother’s Day until 5:00pm on Mother’s Day
4.3 With the Father on the Father’s birthday from after school on the day of his birthday until before school the following day or if his birthday falls on a weekend, then from 5:00pm on the evening immediately preceding the Father’s birthday until 5:00pm on the Father’s birthday.
It is therefore understandable why the Wife is very concerned about where she will live, her financial circumstances, how she can provide for the children and her future. The Wife has experienced significant difficulties with accommodation since she ceased living in the former matrimonial home.
The Wife has always been the primary carer of the children and although since separation the Husband has played a greater role with the care of the children than he did before, I am of the view that the probabilities are that the Wife will continue to play a greater role than the Husband. It is however important that the children maintain and develop their close relationship with the Husband. There are obvious benefits to each child of having a meaningful relationship with both of the parents. The Wife proposes that the Husband have a meaningful relationship with the children and I have confidence in her ability and willingness to ensure that this happens.
I have come to the conclusion that the proposal that is in the best interests of the children is that they reside with the Wife on the Gold Coast and spend significant and substantial time with the Husband. There will be practical issues to be dealt with but overall it is the proposal that in my view will provide the children with the opportunity to have a meaningful relationship with both parents. It will enable the Wife to settle her financial circumstances and not have to care for the children in an environment which she finds stressful. The Wife seeks to provide some financial security for herself and not to be dependent on the Husband. I accept this submission. I have no doubt that given the history the Wife’s concerns are justified. The Wife’s capacity to parent the children would be enhanced if she could achieve this outcome. I accept that the ability of the Wife to do so on the Gold Coast is better than her ability to do so if she remained living in Sydney. In the future the Wife may return to live in Sydney. So also it may be that the Husband is unable to resolve his financial difficulties and decides to move to the Gold Coast.
PROPERTY PROCEEDINGS-RELEVANT PRINCIPLES
The approach to the determination of an application pursuant to s 79 of the Family Law Act 1975 (Cth) is well established by authority. Section 79(2) provides that I shall not make an order, under the section, unless I am satisfied, in all the circumstances, that it is just and equitable to make the order. I am required, in considering what order, if any, I should make, to take into account the respective contributions of the parties referred to in paragraphs (a), (b) and (c) of s 79(4); the effect of any proposed order upon the earning capacity of the parties; the matters referred to in s 75(2), so far as they are relevant; any other order made under the Act affecting a party or a child, and any child support under the Child Support (Assessment) Act 1989 (Cth).
FINANCIAL CIRCUMSTANCES
The first step is to determine the extent and value of the property, liabilities and financial resources of the parties at the time of the hearing.
Issues – financial circumstances
By 8 February 2008 there was largely agreement as to the identity and value of the assets and liabilities. However there are some remaining issues.
There is an issue as to the value of the artwork in the possession of the Wife. The Husband contends that the value is $5,000 and the Wife contends that the value is nil or of little value. There is no evidence of value and thus I am not going to attempt to put a specific value or even a range of values on the items. I am also not going to order a sale as I have no evidence that the parties are likely to achieve some financial benefit from a sale.
There is an issue about how various amounts paid to the Wife should be treated. The amounts include $4,437 paid to the Wife, an Australian Taxation Office refund of $12,846, a Centrelink lump sum Childcare Rebate for period 2002 – 2005 of $11,794, additional funds paid to Wife of $5,000, a Family Assistance Office refund of $4,363 and an amount of $12,000 paid to the Wife for a motor vehicle which she did not acquire. The total is $50,440. The Wife contends that the amounts should not be included as she gave evidence that the funds were used by her to pay for living expenses and to a small extent to assist with the payment of legal costs which are included in the list of assets. I accept the evidence of the Wife. There is no evidence that since separation she has had an extravagant or wasteful lifestyle. On the contrary, the evidence suggests that the Wife has experienced financial difficulties and in those circumstances I am not going to include the amounts received and disbursed. I note that the current rental paid by the Wife is $48,000 per annum.
There is an issue about the loan from Husband’s parents of $265,866 and interest on the loans at 5% of $59,500. The husband’s father gave evidence that he made the following loans to the Husband:
$
·12 January 2000 60,000
·5 June 2000 78,866
·23 October 2003 50,000
·12 December 2003 150,000
·13 May 2004 25,000
·October 2004 26,000
·18 February 2005 26,000
·28 July 2005 25,000
·13 February 2006 5,000
·13 February 2006 20,000
Total 465,866
However in mid 2003 the husband’s father forgave $200,000 and thus it is contended that the debt is $265,866.
According to the Husband, during the relationship he borrowed the total of $465,866 from his parents. This was in circumstances where, at the commencement of the relationship, he had an income of $140,000 per annum and for the year ended 30 June 2008 may have a total pre-tax accounting income of approximately $336,758 ($168,379 x 2). This supports what I have already said. I accept that the Husband borrowed $465,866 from his parents of which there are monies outstanding in an amount of $265,866 given the forgiveness of an amount of $200,000. However, the Husband has never repaid any amount borrowed from his parents. Further the Husband’s parents gave evidence that if the debt is not repaid, then it will be deducted from the Husband’s prospective inheritance. No demand for repayment has been made and no demand for repayment is foreshadowed. Thus I proceed on the basis that there is a debt but it may not be repaid until after the death of both of the Husband’s parents. In final submissions counsel for the Husband said that the Husband’s parents are certainly not calling for immediate repayment of the debt. However, no attempt was made to ascertain the discounted current value of the debt given that it may not be repaid until after the death of the Husband’s parents.
As to the amount of interest claimed there is a conflict in the evidence. The Husband’s father said that he knew nothing about the payment of interest and it was never discussed. The Husband and his mother gave evidence that interest was payable. Counsel for the Husband submitted that the Husband’s father may have simply forgot and that for “persons of that vintage, recollection is not always perfect”.
In all the circumstances I will include the amount of $265,866. However, I will take into account pursuant to s 75 (2) Family Law Act, that the current value of the debt is less than $265,866 because it may not be repaid until after the death of both of the Husband’s parents. I am not going to include an amount for interest as I am not satisfied that an agreement was ever made that interest would be paid. However, when assessing the contributions made by the Husband I will take into account that the loans were interest free.
There is an issue about what is described as N Partnership (old) overdraws to 28 February 2007. The Husband contends that an amount of $63,646 should be included as a liability. On behalf of the Wife it is submitted that although the liability is included in a relevant balance sheet, it was accompanied by a statement to the effect that the claims against the former partners were in excess of that liability (Exhibit G). Thus it was submitted that I should ignore the liability. On behalf of the Husband it was submitted that the Husband gave particular evidence that was “internally consistent” and he was not “shaken” that he has a liability for the amount claimed. The difficulty is that the relevant accounts disclose what I consider to be an offsetting amount and if what the Husband contends is correct, then I would have expected that the offsetting amount would not be included in the accounts or that evidence would be called to corroborate the contention of non-recoverability. But this did not happen. I have come to the conclusion given the evidence of an offsetting amount that it would be unjust not to make some provision for this. Thus I am going to therefore exclude the amount of $63,646 as a liability.
I accept the evidence of the Wife as to her contingent liability to Centrelink for over payments calculated by her at $13,616.
I accept that the Wife has a debt of her parents of $99,682
I accept that the Husband has a loan from his parents of $79,184 to enable him to pay legal fees.
Conclusion - financial circumstances
In my opinion, for the purposes of these proceedings, the parties have the following property and liabilities:
Assets $
·S property (h/w) 1,000,000
·IAG shares – 334 (w) 1,279
·Artwork (Wife’s possession) (h/w) nk
·Household contents (H’s possession) (h/w) nil
·Household contents (W’s possession) (h/w) nil
·Jewellery (w) 5,000
·UK Superannuation Fund (h) 35,139
·K Super Fund (self managed) (h/w) 88,690
·MLC Super Fund (accumulated) (w) 44,194
·Westpac account (h/w) 4
·Westpac account (w) neg
·CBA account (h) 18
·Westpac account (h) 10,738
·CBA account (w) 335
·N Commercial Partnership (h) 96,381
·N Commercial Trust (h) 56,939
·N Trust (old) (h) 56,782
·Barclays Bank account (h) nil
·Shares – IAG – 764 (h) 2,926
·Shares – AXA – 206 (h) 1,292
·Shares – Telstra – 1,000 (h) 4,510
·Shares – AMP – 397 (h) 3,430
·AMP Life Policy (h) 13,771
·AMP Superannuation Policy as at 14 May 2007 (h) 47,018
·AC & L Life & TPD Policy (h) 2,477
·BMW motor vehicle(h) 12,000
·Legal fees paid to date (w) 44,180
·Legal fees paid to date (h) 116,057
Total1,643,160
Less
Liabilities
·Westpac mortgage (home) (h/w) 567,992
·Westpac additional loan (h/w) 99,933
·Loan from Husband’s parents (h) 265,866
·MasterCard (h) 10,109
·Visa (h) 7,316
·Amex card (h) 13,730
·N Commercial Partnership (2006) – personal tax liability (h) 54,370
·N Commercial Trust etc combined (2006) - personal tax liability (w) 21,730
·N Commercial Trust etc 2007 personal tax liability (h) 70,500
·N Commercial Trust etc 31/12/07 personal tax liability (h) 68,000
·Loan from Wife's parents (furniture during marriage) (h/w) 3,000
·Loan from Wife's parents - incl. $24,382 legal fees (w) 99,682
·David Jones Card (w) 3,823
·MasterCard (w) 5,954
·K Super Fund - tax liability and audit fees (h/w) 22,260
·B Company (h) 1,622
·Husband's loan from parents - legal fees 79,184
·Centerlink overpayments received by Wife (w) 13,616
Total 1,408,687
Balance$ 234,473
CONTRIBUTIONS
As to the contributions, the Husband relies upon two matters. First, the contribution of the assets he had at the commencement of cohabitation. Second, the forgiveness by his parents in 2003 of the debt of $200,000. However I would add as a third matter the contribution by the Husband of interest free loans for in excess of $250,000.
If it were not for these matters I would have come to the conclusion that the contribution based entitlements were equal. However, these matters favour the Husband. In determining the weight that I should give to such matters, I take into account that the Husband contends that the net assets have a value of $169,000 and yet on the Husband’s case at least two of the relevant matters have a combined value of $370,000.
Conclusion - contributions
In all the circumstances, I am of the view, that the contribution based entitlements of the parties, expressed as a percentage of the net assets of the parties, should be assessed as to 65 per cent or $152,407.45 to the Husband and 35 per cent or $82,065.55 to the Wife.
OTHER FACTORS
The Husband is aged 40 years and the Wife is aged 42 years.
Both parties are in good health.
The Husband has a significantly greater income than the Wife. The Wife presently has no income. The Husband also has a significantly greater earning capacity than the Wife. At the commencement of cohabitation the Husband’s income was $140,000 per annum and the Wife’s income was $70,000 per annum. The Wife has not engaged in paid employment for about nine years. In final submissions, counsel for the Husband submitted that the Husband conceded that he should continue to pay to the Wife the sum of $1,200 per week until the end of 2009.
As a result of my findings as to the contribution based entitlements of the parties, the Husband has greater property interests than the Wife namely $70,341.90.
As a financial source the Husband also has the benefit of the interest free loans from his parents, which may not be repaid until after their death.
The Wife will have a greater responsibility for the day to day care and accommodation of the children.
The Husband will have to pay a very reasonable and perhaps significant level of Child Support.
Conclusion – other factors
In all the circumstances, I am of the view, that there should be an adjustment of 25 per cent or $58,618.25 of the net assets of the parties to the contribution based entitlement of the Wife
EFFECT OF ORDERS
The Wife sought an order that in the event that N Partnership, N Trust, N Commercial Partnership and N Commercial Trust recovered any monies from a former partner, Mr N in New Zealand, in relation to claims by the professional practice group against Mr N for funds for which he allegedly failed to account to the professional practice group, the Husband cause an amount equal to 65 per cent of the net amount of his share of any such funds recovered to be paid to the Wife within seven days of receipt by him of the said funds. I am not going to make this order. No submissions were made about it on behalf of the Wife.
I am going to make an order that any entitlements the Wife has as a member of the K Superannuation Fund be transferred to the Husband. .
The equity in the former matrimonial home is $332,075 ($1 million less $567,992 and $99,933). I am going to order that the former matrimonial home be sold and that the parties each receive a percentage of the net proceeds of sale. I have made no allowance for selling costs. The orders will be on the basis that the amounts to be paid to the Westpac Bank will be no more than the two amounts of a total of $667,925 and the Husband is paying all instalments of principal and interest that have to be paid as and when they fall due.
The Wife will receive an entitlement of 60 per cent of the net assets or $140,683.80 which will comprise the following:-
Assets $
·51.73 per cent of the sale proceeds of S property 171,771
·IAG shares – 334 1,279
·Artwork (Wife’s possession) nk
·Household contents (W’s possession) nil
·Jewellery 5,000
·MLC Super Fund (accumulated) 44,194
·Westpac account neg
·CBA account 335
·Legal fees paid to date 44,180
Total266,759
Less
Liabilities
·Loan from Wife's parents (furniture during marriage) 3,000
·Loan from Wife's parents - incl. $24,382 legal fees 99,682
·David Jones Card 3,823
·MasterCard 5,954
·Centrelink overpayments received by Wife 13,616
Total 126,075
Balance$ 140,684
The Husband will receive an entitlement of 40 per cent or $93,789.20 which will comprise the following:-
Assets $
·48.27 per cent from the sale of S property 160,304
·Household contents (H’s possession) nil
·UK Superannuation Fund 35,139
·K Super Fund (self managed) 88,690
·Westpac account 4
·CBA account 18
·Westpac account 10,738
·N Commercial Partnership 96,381
·N Commercial Trust 56,939
·N Trust (old) 56,782
·Barclays Bank account nil
·Shares – IAG – 764 2,926
·Shares – AXA – 206 1,292
·Shares – Telstra – 1,000 4,510
·Shares – AMP – 397 3,430
·AMP Life Policy 13,771
·AMP Superannuation Policy as at 14 May 2007 47,018
·AC & L Life & TPD Policy 2,477
·BMW motor vehicle 12,000
·Legal fees paid to date 116,057
Total708,476
Less
Liabilities
·Loan from Husband’s parents 265,866
·MasterCard 10,109
·Visa 7,316
·Amex card 13,730
·N Commercial Partnership (2006) – personal tax liability 54,370
·N Commercial Trust etc combined (2006) - personal tax liability 21,730
·N Commercial Trust etc 2007 personal tax liability 70,500
·N Commercial Trust etc 31/12/07 personal tax liability 68,000
·K Super Fund - tax liability and audit fees 22,260
·B Company 1,622
·Husband's loan from parents - legal fees 79,184
Total 614,687
Balance$ 93,789
In all the circumstances, having regard to all relevant statutory considerations, I am of the opinion that the outcomes identified above are just and equitable. I should add that if I have made any errors in the determination of the net assets I would have made percentage adjustments to the respective entitlements.
SPOUSE MAINTENANCE
The Wife contends that she has the following weekly expenses.
$
·Rent 850
·Groceries 320
·Household supplies 100
·Electricity 30
·Gas 15
·Water 5
·Gardener 7
·Telephone/internet 50
·Petrol 90
·Fare/parking 66
·Clothes 90
·Toys/activities 45
·Medical 10
·Entertainment/café 45
·Chemist 50
·Dry cleaning 5
·Newsagents/books 5
·Gifts 40
·Hair 30
·Insurance 10
·David Jones 80
·Mastercard 20
Total 1,963.
The Wife presently receives as spousal maintenance an amount of $1,200 per week and thus she contends she currently has a shortfall of $763 per week. I have no doubt that at the present time the Wife is unable to support herself adequately. However, the Wife does not seek an order for spousal maintenance if the consequence of the orders in the parenting proceedings is that she is able to reside on the Gold Coast with the children. This is the consequence.
I am going to order that the Husband continue to pay the Wife the amount of $1,200 until the expiration of 12 weeks after she relocates to the Gold Coast. This will give the Wife to opportunity to settle the children and make arrangements for employment.
CHILD SUPPORT
On the basis that the Wife is residing on the Gold Coast with the children, and there is no order for spousal maintenance, the Wife seeks that the Husband pay as child support the amount of $600 per week.
I have no doubt that on the basis that the Wife resides on the Gold Coast with the children and the Husband pays no spousal maintenance then the amount of child support the Husband will have to pay will be significant and maybe in the order of $600 per week plus other expenses. However, the difficulty I have, and it was conceded in final submissions, is that until it is settled what the circumstances of each party will be in consequence of the orders I propose to make for parenting and property settlement, it is difficult to resolve what the financial circumstances of each party will be in relation to child support. For example, the Husband will no longer have to pay spousal maintenance but he will have to pay the costs of travel and accommodation in relation to times that he spends with the children.
In the circumstances I am going to adjourn for further hearing the application by the Wife for child support departure on the basis that I do not consider that the hearing of the application is part heard before me.
I certify that the preceding two hundred and thirty eight (238) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan
Associate:
Date: 6 June 2008
Key Legal Topics
Areas of Law
-
Family Law
-
Property Law
Legal Concepts
-
Remedies
-
Injunction
-
Costs
-
Procedural Fairness
-
Jurisdiction
-
Res Judicata
0
5
3