Lennon and Lennon No. 2

[2011] FamCA 844

FAMILY COURT OF AUSTRALIA

LENNON & LENNON NO. 2 [2011] FamCA 844

FAMILY LAW – PROPERTY – Division of property in accordance with orders not agreed

Family Law Act 1975 (Cth)

APPLICANT: Ms Lennon

RESPONDENT: Mr Lennon

FILE NUMBER: BRC 8876 of 2008

DATE DELIVERED: 28 September 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 28 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J.D. Hogan

SOLICITOR FOR THE APPLICANT: Belinda Eyers & Associates

SOLICITOR FOR THE RESPONDENT: Mr Tester of Stephen Tester & Associates

Orders

AND UPON NOTING THAT, in reference to paragraph 10 of the orders made on 19 July 2011, the parties have been unable to provide agreed minutes of order

IT IS ORDERED THAT:

A.For the purposes of clarity, the orders made on 19 July 2011 be consolidated with orders made today which such orders shall be in accordance with the proposed orders submitted by the wife today, initialled by me and placed with the papers.

B.The appeal period in respect of each such order run from the date that each such order was made.

IT IS ORDERED ON 19 JULY 2011 THAT:

IT IS DECLARED THAT:

1. The presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (Cth) (“the Act”) is rebutted in the best interests of the children:

   a.Z, born … 1995

   b.J, born … 1997

   c.T, born … 2000

   d.S, born … 2001

   e.B, born … 2003

IT IS ORDERED THAT:

Parental Responsibility

1. The mother shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Act (as amended)) in respect of the children, save that the mother shall, prior to making the sole ultimate decision about any such issue:

   a.Use her best endeavours to advise the father in writing of the decision intended to be made;

   b.Seek the father’s written response in relation thereto;

   c.Consider, by reference to the best interests of the children, any such response prior to making any such decision;

   d.Advise the father in writing as soon as reasonably practicable of her ultimate decision.

2. Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:

   a.Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the children;

   b.Any school which the children attend;

   c.The Director of any extra-curricular school or other activity in which the children are involved,

   to provide to the other party such information as might reasonably be required about the children together with any report, assessment or other such document provided to a parent in respect of the children.

3. Each of the parties shall notify the other of any serious accident, illness or other emergency affecting the children as soon as reasonably possible after its occurrence.

4. Each of the parties shall advise the other and keep the other advised of:

   a.Their residential address;

   b.Telephone numbers at which they and the child can be contacted;

   c.Any email address to which the child can have access,

   and shall notify any changes in any such details within 48 hours.

Live With and Time

1. The children shall live with the mother.

2. J, T, B and S shall spend time with the father as follows:

During School Term

a.Every second Thursday from the conclusion of school until the commencement of school the following Monday with the first such period to commence on Thursday 21 July 2011.

During School Holidays

b.J, T, B and S will spend half of all gazetted New South Wales school holidays with each parent, as follows, commencing in 2011 and alternating each year thereafter:

i.First term holidays with the mother;

ii.Second term holidays with the father;

iii.Third term holidays with the mother;

iv.Pre-Christmas with the father;

v.Post-Christmas with the mother.

To facilitate changeover for the purposes of subparagraphs (d) and (e), the parent who has care of the children, will drop them at the other parent’s residence at 5pm on 26 December.

Mother’s and Father’s Day

c.On Mother’s Day, the children, should they be staying with the father, may be collected by the mother at 9am and returned to the father by 5pm.

d.On Father’s Day, the children, should they by staying with the mother, may be collected by the father at 9am and returned to the mother by 5pm. 

1. The children shall be at liberty to communicate with the parent with whom they are not spending time at any time and when the children express a wish to contact that parent, the other parent shall use his or her best endeavours to facilitate such call.

IT IS FURTHER ORDERED THAT:

1. The property of the parties or either of them within the meaning of s 79 of the Family Law Act 1975 be distributed in the proportion 55 per cent to the wife and 45 per cent to the husband.

2. As to give effect to the said distribution, the parties shall, within 21 days of the date of this Order, file by way of joint communication forwarded by email to the Associate to Justice Murphy, agreed minutes of order, and, failing agreement, the matter be listed before Murphy J at a date and time to be advised.

IT IS FURTHER ORDERED THAT:

1. The wife’s application for a child support departure order is dismissed.

IT IS ORDERED ON 28 SEPTEMBER 2011:

1. That the husband retain sole legal and beneficial ownership of the following assets:

   a.Motor Vehicle Registration number …

   b.Household contents in the Husband’s possession

   c.SUV motor vehicle Registration number …

   d.Cardboard

   e.Petrol Generator

   f.Cement mixer

   g.Trailer

   h.5 row root cutter

   i.5 row tool bar

   j.2 x Melon picker

   k.2 x Rig trailer

   l.Tent

   m.Truck

   n.Round table

   o.Cane harvester

   p.Boom spray

   q.Air seeder

   r.Inflatable boat and motor

   s..22 rifle

   t.303 shotgun

   u.Air rifle

   v.Items located at F Street

   w.Legal fees

   x.45 per cent of Business 2

   y.45 per cent of Business 1

   z.Money in husband’s bank account at 20 June 2011, $8,130.00

   The value to be attributed to items numbered (a) to (w) total $86,000.00.
   
   

2. That the wife retain sole legal and beneficial ownership of the following assets:

   a.Trailer

   b.European motor vehicle

   c.Motorbike

   d.Flow forms

   e.Radionics Instrument

   f.Broadcasting towers

   g.Household contents of BB Street, Town 2

   h.$128,000.00 of legal fees paid as at date of trial and paid from income from matrimonial assets

   i.55 per cent of Business 2

   j.55 per cent of Business 1

   The value to be attributed to items numbered (a) to (h) is $177,000.00.

1. The sum of $31,818.18 which represents the proceeds received on the sale of the ice cream van exclusive of GST is to be distributed as follows in the following order:

   a.$5,500.00 to the wife

   b.45 per cent of the balance to the Husband less the sum of $2,860.00

   c.55 per cent to the wife plus the sum of $2,860.00

   The above division represents a division of 55 per cent to the wife and 45 per cent to the husband with adjustments for money paid on the husband’s behalf and on behalf of the partnership for joint expert witness expenses and preparation of financial statements to comply with Orders of this Honourable Court.

2. The husband is responsible for payment of the following liabilities:

   a.Any income tax owing to the Australian Taxation Office (“ATO”) by the husband as asserted by the Husband at the date of trial in the sum of around $11,000.00.

3. The wife is responsible for payment of the following outstanding liabilities:

   a.School fees payable to Town 2 School.

   b.Any debt to the ATO in the wife’s name.

   c.Loan to CC Pty Ltd pursuant to loan agreement dated the 14 June 2011.

4. That the husband do all that is necessary to transfer 55 per cent of his interest in the real estate identified as Lot … DP … (hereafter referred to as “F Street”) and 10 per cent of his interest in real estate being Lot … DP … (hereafter referred to as “R Street”) to the wife.

5. That F Street and R Street be offered for sale by public auction on 18 November 2011 with Mr DD of CC Pty Ltd, and shall be listed for a reserve price of $1,750,000.00 and $1,120,000.00 respectively.

6. That the husband, at his sole expense, prepare F Street for sale by 11 October 2011 by removing all plant and equipment from the property. Leaving the shed, ablutions and surrounding areas clear of all debris. The floor is to be pressure cleaned of all dirt, soil, oil and manure. The shed is to be repaired to enable same to be locked and secure.  All flashings and down pipes for the shed to be in working order.

7. In the event the husband has not attended to all the matters set out in Order 8 by 11 October 2011 then the wife shall be at liberty to engage contractors to perform such work and all the costs of such shall be an adjustment in favour of the wife for the principal and any interest she may have incurred in meeting such payments on completion of the sale of the first of the F Street or R Street.

8. In the event either F Street or R Street are not sold at public auction then same shall be listed for sale by private treaty with the same agent and at the same price as the reserve price.

9. The husband and wife shall comply with clause 22 of the lease dated the 27 April 2006 between the husband and D Pty Ltd for the lease of F Street Farm and in order to ensure such compliance the wife shall provide the appropriate notices to D Pty Ltd and any sublessee of D Pty Ltd in relation to any auction or offer for sale by private treaty.

10. The husband and wife shall comply with clause 22 of the lease dated the 27 April 2006 between the husband, wife and D Pty Ltd for the lease of R Street and in order to ensure such compliance the wife shall provide the appropriate notices to D Pty Ltd and any sublessee of D Pty Ltd in relation to any auction or offer for sale by private treaty.

11. In the event either or both F Street or R Street are not sold at auction then simultaneously with listing F Street and R Street for sale, the husband and wife shall instruct the solicitors acting on the sale to forward a copy of the listing contract with a Notice of Intended Sale and with an offer to D Pty Ltd to purchase either or both F Street and R Street on the same terms and conditions as set out in the listing contract in accordance with the terms of the leases.

12. The wife is hereby appointed attorney for the husband in relation to all aspects of the auction, sale and transfer of F Street and R Street.

13. In the event either or both F Street or R Street have not sold by 31 December 2011 then whichever real estate has not sold is to be valued by EE Property Valuers and offered again for public auction with the reserve price to be the valuation attributed by EE Property Valuers and the date to be as decided by the wife with all other terms to be as set out in these Orders.

14. In the event either or both F Street or R Street are not sold at auction the husband and wife shall accept any offer of purchase made in relation into the sale of F Street and R Street within five percent (5 per cent) of the reserve price.

15. That the sale proceeds in relation to F Street and R Street be distributed as follows and in the following order:

    a.Payment of all costs and disbursements associated with the sales including legal fees and agent fees and commissions;

    b.Payment of all money owed by the husband and the wife to Business 2 and Business 1;

    c.Payment of any outstanding taxation liability of Business 2 and Business 1 to the ATO;

    d.The balance to be divided so that the net division of matrimonial property, including any interest the parties have in superannuation, between the husband and wife reflects 45 per cent to the husband and 55 per cent to the wife.

16. That Business 1 transfer the shares it owns in Business 2 to the wife on or before 14 days of the date of these Orders.

17. That the husband do all that is necessary to transfer 10 per cent of his interest in Business 2 to the wife on or before 14 days of the date of these Orders.

18. That the husband do all that is necessary to resign as Director of Business 2 on or before 14 days of the date of these Orders.

19. After the husband’s resignation as director in Business 2 the wife shall do all that is necessary to distribute the assets in Business 2 to the shareholders and then do all that is necessary to deregister Business 2.

20. That the husband do all that is necessary to transfer 10 per cent of his interest in Business 1 to the wife on or before 14 days of the date of these Orders.

21. That the husband do all that is necessary to resign as Director of Business 1 on or before 14 days of the date of these Orders.

22. After the husband’s resignation as director in Business 1 the wife shall do all that is necessary to distribute the assets in Business 1 to the shareholders and then do all that is necessary to deregister Business 1.

23. That unless otherwise specified all other property shall vest in the party having possession or control thereof at the date of these Orders free from any right or claim of the other and each party shall be solely liable for and shall indemnify the other against all monies owing in respect of or encumbering any item of property to which that party is entitled pursuant to these Orders.

24. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

    a.each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date; 

    b.each party hereby forgoes any claim they may have to any future superannuation benefits belonging to or earned by the other;

    c.all insurance policies to become the sole property of the beneficiary named in the policy;

    d.each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

IT IS FURTHER ORDERED THAT

1. Leave is given to the wife to make an oral application, through counsel today, that the husband pay the wife’s costs of and incidental to the proceedings, including any proceedings in respect of settlement of orders.

2. The wife shall file and serve all affidavit material relating to the oral application by 4.00pm, Wednesday 19 October 2011.

3. The husband shall file and serve a response setting out any orders sought in an affidavit to be filed by 4.00pm, Wednesday 2 November 2011.

4. The wife’s oral application for costs be listed for hearing before his Honour Justice Murphy at 10.00am on Friday 4 November 2011 in the Brisbane Registry of the Family Court of Australia.

5. Pursuant to s 65DA(2) and s 62B, 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.

IT IS NOTED that publication of this judgment under the pseudonym Lennon & Lennon No. 2 is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 8876 of 2008

Ms Lennon

Applicant

And

Mr Lennon

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 19 July 2011, I made orders and delivered reasons for judgment in respect of a trial of parenting and financial proceedings between the husband and wife which occurred on 20, 21 and 22 June 2011.  Among the orders made by me were:

   9.The property of parties or either of them within the meaning of section 79 of the Family Law Act 1975 be distributed in the proportion 55 per cent to the wife and 45 per cent to the husband.

   10.As to give effect to the said distribution, the parties shall within 21 days of the date of this order file by way of joint communication, forwarded by email to the associate to Murphy J, … agreed minutes of order and, failing agreement, the matter be listed before Murphy J at a date and time to be advised.

2. The parties have been unable to submit a joint minute of order as paragraph 10 directed they should. 

3. It ought be observed that the order for settlement of property was made some three months ago.  It also ought be observed that the opportunity afforded to the parties to prepare minutes giving effect to the order made on that day was an opportunity for them to implement the order, as distinct from engaging in a process of negotiation that might otherwise detract from that task.

4. It seems from the correspondence passing to and fro between the solicitors for the parties that comprise exhibit W1 before me this morning that the parties are not in agreement about the orders that should be made. 

5. Ms Hogan who appears as counsel for the wife this morning submits a minute of order and asks the Court to make that order.  Mr Tester who appears for the husband neither submits today, nor has otherwise submitted, a minute of order contended by his client. 

6. It is conceded by Mr Tester that the minute of order provided on behalf of the wife does, in fact, effect a 55 per cent, 45 per cent division of the property as contemplated by paragraph 9 of the orders made by me. 

7. That concession having been made, the issue before me is whether the orders contained in the minute are just and equitable and, accordingly, ought be made pursuant to section 79.

8. Mr Tester says, that most of the matters contained within the orders are effectively agreed save for paragraphs 14, 20 and 23. They provide as follows:

   14.The wife is hereby appointed attorney for the husband in relation to all aspects of the auction, sale and transfer of [F Street] and [R Street].

   20.That the husband do all that is necessary to resign as director of [Business 2] [a corporation the subject of the property proceedings] on or before 14 days of the date of these orders.

   23.That the husband do all that is necessary to resign as director of [Business 1] [a corporation the subject of the property proceedings] on or before 14 days of the date of these orders.

9. The effect of paragraph 14 of the orders is, as it seems to me, to give the wife carriage of the sales otherwise provided for in the preceding paragraphs of the orders. 

10. Mr Tester submits that the orders otherwise provide a mechanism for that sale and that, in effect, order 14 is not necessary.  The issue, as I earlier said, in respect of these orders, the concession having properly been made by Mr Tester that the orders reflect a division of the property in the proportion 55 per cent to the wife and 45 per cent to the husband ordered by me, is whether the specific provisions of the orders are just and equitable in all of the circumstances.

11. In argument, I suggested to Mr Tester that the trial proceedings before me were redolent of an utter incapacity on the part of these parties to be able to reach agreement about a miscellany of different issues, noting that the trial included arguments about parenting as well as arguments about property.  Ms Hogan in that respect specifically refers to paragraph 105 of the reasons for judgment which refers to the parenting aspect. 

12. Mr Tester argues that the orders are otherwise effectively agreed, and that this indicates a capacity on the part of the parties different to that which I suggested during the course of argument.  I disagree.  

1. The documentation forming part of exhibit W1 to which I have earlier referred, together with my understanding of the history the matter which is recorded at some length in the reasons for judgment, in my view, points strongly to the contrary.

2. I made orders in this matter in July.  Now, three months later, those orders have still not been carried into effect although Mr Tester says that at least some of the preliminary matters necessary to effect relevant sales are being undertaken by his client as we speak.  It seems to me that paragraph 14 of the orders ought properly be included in the circumstance of this case. 

3. Paragraphs 20 and 23 are in similar terms.  They refer to the resignation of the husband as a director of Business 1 and Business 2 respectively.

4. The submission in this respect, as I understand it, is that the husband is to retain a shareholding in each of those companies.  They are companies with, as it were, a history in the context of the marriage of the parties and that it is inappropriate for the husband to resign as a director in respect of each.  Again, I disagree with that submission. 

5. It is perhaps sufficient to note in that respect that the wife will receive, as part of the orders otherwise to be made, a 55 per cent shareholding in each of those corporations.  It seems to me there is no merit in the submissions made by Mr Tester in that respect. 

6. Further, and in any event, the concession having properly been made by Mr Tester on behalf of the husband that the orders implement the division of property found by me to be just and equitable in the circumstances of this case, I ought be concerned with the justice and equity of the orders as proposed and other matters plainly related to their implementation. For example, I should be concerned with whether, on their face, any of the orders are incapable of being carried out, not implemented or are otherwise unrealistic or impractical in the circumstances.

7. Having now read the orders in their entirety, none of those epithets could be said to apply to the orders here.  They seem to me to contemplate an orderly and appropriate means by which the ultimate order made by me at paragraph 9 of the orders made on 19 July ought be carried into effect.

8. I order in accordance with the Minutes proposed by counsel for the wife.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 28 September 2011.

Associate: 

Date:  3 November 2011