FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Leon & Bonnay (No 2) [2024] FedCFamC1F 305
File number: MLC 2058 of 2021 Judgment of: HARTNETT J Date of judgment: 9 May 2024 Catchwords: FAMILY LAW – PARENTING –Where the parties agree to equal shared parental responsibility – Where the parties have a highly conflictual co-parenting relationship – Where credit issues – Where the mother’s evidence is preferred – Where the ambit of the dispute was narrowed to the children’s spend time with each of the parents during school terms – An intractable dispute – Where the mother demonstrated a willingness to support the children’s relationship with the father – Where the father pursued an equal time arrangement – Where the children’s best interests are promoted by the proposal of the mother namely the children live with the mother for nine nights a fortnight and with the father for five nights a fortnight.
FAMILY LAW – PROPERTY – Where each of the parties sought an alteration of property interests – Where financially controlling and coercive behaviour found resulting in a Kennon adjustment – Where husband failed in his duty of disclosure – Where a s 75(2) adjustment is made – Where orders made for the sale of real properties – Where orders made for the retention of other real properties.
Legislation: Evidence Act 1995 (Cth) ss 131, 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61C, 61DA, 65DAA, 75, 79, 90SM, 102NA, 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.01, 6.06
Cases cited: Akhtar & Gaber (No 3) [2018] FamCAFC 208
Bevan & Bevan (2013) FLC 93-545
Black v Kellner [1992] FamCA 2
Blandford & Esmore [2022] FedCFamC1A 67
Blinko & Blinko [2015] FamCAFC 146
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Farrah & Cisek [2024] FedCFamC1A 38
Goode & Goode (2006) FLC 93-286
Kennon & Kennon (1997) 22 Fam LR 1
Lovine & Connor (2012) FLC 93-515
M & M (1988) 166 CLR 69
Maine & Maine (2016) 56 Fam LR 500
Mallet v Mallet (1984) 156 CLR 605
Mulvany & Lane (2009) FLC 93-404
Petruski v Balewa (2013) 49 Fam LR 116
Roverati & Roverati (2021) FLC 94-027
Russell & Close [1993] FamCA 62
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Weir & Weir (1992) 16 Fam LR 154
Division: Division 1 First Instance Number of paragraphs: 464 Date of last submissions: 24 April 2024 Date of hearing: 14-17, 21 November 2022; 9-10 March 2023; 12 February 2024; and 15 April 2024 Place: Melbourne Counsel for the Applicant
(15 April 2024)Dr Smith Counsel for the Applicant
(12 February 2024):Mr Bartfeld KC Counsel for the Applicant
(9-10 March 2023):Dr Smith Solicitor for the Applicant
(9 March 2023 – 15 April 2024):Lander & Rogers The Applicant
(14-21 November 2022):Litigant in Person Counsel for the Respondent: Mr Tatarka Solicitor for the Respondent: Taussig Cherrie Fildes ORDERS
MLC 2058 of 2021 FEDERAL…
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- Leon & Bonnay (No 2) [2024] FedCFamC1F 305
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- [2024] FedCFamC1F 305
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included determining the appropriate parenting arrangements for the children, considering the intractable dispute between the parents and the children's best interests, as well as making just and equitable orders for the division of their property. The court had to consider various factors, including the husband's failure to disclose financial information and his obstructive behaviour post-separation. The wife had provided credible evidence that contradicted the husband's claims, and the court found that an adjustment was necessary to account for the husband's conduct under section 75(2) of the Family Law Act 1975 (Cth).
The court ruled that the children should live with the wife for nine nights a fortnight and with the husband for five nights a fortnight during school terms, with a rotating arrangement during school holidays and special occasions. This arrangement was deemed to promote the children's best interests given the conflictual relationship between the parents. Regarding the property division, the court ordered the sale of certain properties, retention of others, and an adjustment to account for the husband's conduct and the wife's contributions post-separation. The husband was also required to indemnify the wife against various liabilities and provide certain assets.
The final orders included specific parenting arrangements, property sale and retention directives, financial obligations, and provisions for the enforcement of the orders. This decision aimed to provide a fair and balanced outcome for both parties while prioritising the children's welfare.
Orders
Orders of the court
MLC 2058 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR LEON
Applicant
AND:
MS BONNAY
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
9 MAY 2024
THE COURT ORDERS THAT:
PARENTING
1. All previous parenting orders be discharged.
2. The applicant husband (“the husband”) and the respondent wife (“the wife”) have equal shared parental responsibility for the children X born 2012 and Y born 2014 (“the children”).
3. The children live with each of the husband and the wife:
(a) in a fortnightly cycle during school terms:
(i) with the wife for nine consecutive nights from the commencement of school (or 9.00am if a non-school day) on Monday until the conclusion of school (or 4.00pm if a non-school day) on Wednesday of the following week; and
(ii) with the husband for five consecutive nights from the conclusion of school (or 4.00pm if a non-school day) each second Wednesday of the term to the commencement of school (or 9.00am if a non-school day) on the following Monday.
(b) during all school term holidays:
(i) in each odd numbered year, for the first half with the wife and the second half with the husband; and
(ii) in each even numbered year, for the first half with the husband and the second half with the wife.
(c) During the long summer holidays:
(i) in each odd numbered year:
A. from the conclusion of the children’s Term 4 (if the children attend different schools, the later concluding date) until 6.00pm on 24 December, on a week about basis or so much as is left of the week prior to 24 December, with the wife to have the first week; and
B. from 6.00pm Boxing Day to 12.00pm noon on the day two days prior to the commencement of school (if the children attend different schools, the earlier commencement date), on one two‑week about basis, with the wife to have the first two week period, followed by an equal sharing (to commence with the wife) of the remaining days between the expiration of the husband’s two week period and 12.00pm noon on the day two days prior to the commencement of school as described herein.
(ii) in each even numbered year:
A. from the conclusion of the children’s Term 4 (if the children attend different schools, the later concluding date) until 6.00pm on 24 December, on a week about basis or so much as is left of the week prior to 24 December, with the husband to have the first week; and
B. from 6.00pm Boxing Day to the commencement of school (if the children attend different schools, the earlier commencement date), on one two-week about basis, with the husband to have the first two week period, followed by an equal sharing (to commence with the husband) of the remaining days between the expiration of the wife’s two week period and 12.00pm noon on the day two days prior to the commencement of school as described in Order 3(c)(i)(b) above.
(iii) in each year:
A. from 12.00pm noon on the day two days prior to the commencement of the new school year (if the children attend different schools, the earlier commencement date) the children live with the wife.
4. For the purpose of Order 3(a) herein:
(a) a “non-school day” is a non-curriculum day as determined by the children’s school (or each of their schools if the children attend different schools) or public holiday (and does not include, for example, a school day when the children are remote learning or are unwell); and
(b) the timing of the rotating fortnightly cycle during school terms shall continue throughout the calendar year as though such time is not interrupted by the school term holidays or long summer holidays.
5. For the purpose of Order 3(b) herein:
(a) the school term holidays shall commence at the conclusion of school on the last day of the school term (and if the last day of the school term differs for each of the children, the later of the two days is deemed to be the last day of the school term for both children);
(b) the school term holidays shall conclude at the commencement of school on the first day of the school term (and if the first day of the school term differs for each of the children, the earlier of the two days is deemed to be the first day of the school term for both children); and
(c) changeover shall occur at 9.00am on the middle day of the school term holidays where such holidays have a total uneven number of days, and where there are a total even number of days, the children shall spend an additional night with the parent with whom the children are spending time during the first half of the holidays and changeover shall occur at 9.00am the following morning.
6. Order 3 herein be suspended in its operation on the following special occasions, and the children spend time with each of the husband and the wife as follows:
(a) on Mother’s Day, the children spend time with the wife from 9.00am until 5.00pm;
(b) on Father’s Day, the children spend time with the husband from 9.00am until 5.00pm;
(c) on each of the children’s birthdays, if the husband and the wife are otherwise unable to agree or convene a joint celebration and the children are not otherwise spending time with both of their parents on that day, the children spend time with the parent with whom they do not wake up that morning from:
(i) 10.00am to 2.00pm if the children are not attending at school or remote learning that day; or
(ii) after school to 7.00pm if the children are at school or remote learning.
(d) on each of the parents’ birthdays, from 9.00am on their birthday until 9.00am the following day;
(e) if the children do not spend alternate Easter with the parties by virtue of the operation of Order 3(b) herein, the children shall, from 9.00am on Good Friday until 5.00pm on Easter Monday, spend time:
(i) with the wife in each odd numbered year; and
(ii) with the husband in each even numbered year.
(f) for Christmas, unless otherwise agreed:
(i) from 6.00pm on 24 December until 3.00pm Christmas day in each even numbered year with the wife, and in each odd numbered year with the husband; and
(ii) from 3.00pm on 25 December until 6.00pm Boxing Day in each odd numbered year with the wife, and in each even numbered year with the husband.
7. For the purpose of changeover, where changeover does not take place at the children’s school, the wife (or her agent) collect the children from the husband’s residence at the commencement of the children’s time with her and the husband (or his agent) collect the children from the wife’s residence at the commencement of the children’s time with him.
8. Each of the husband and the wife be at liberty to telephone or video call the children during periods in which they are not in their care between 6.00pm and 7.00pm provided that such communications are no longer than 15 minutes in duration and the parents otherwise facilitate the children contacting the other party whenever they request and ensure an electronic device is available for them to use for this purpose.
9. Each of the husband and the wife are permitted to travel interstate and overseas with the children during times the children are in that parent’s care, provided that such travel occurs outside school hours unless otherwise agreed, and that:
(a) for interstate travel, the travelling parent give to the other parent no less than 7 days written notice of their intention to travel, the details of the destination, accommodation and contact telephone numbers for the children during such travel; and
(b) for overseas travel, the travelling parent give to the other parent:
(i) no less than 30 days written notice of their intention to travel, the details of the destination, accommodation, and contact telephone numbers for the children during such travel; and
(ii) no less than 14 days prior to their departure, copies of the children’s airline tickets and travel itineraries.
10. The wife retain possession of the children’s passports and release the passports to the husband at least 14 days prior to the children’s departure for overseas travel with the husband (in accordance with Order 9) and the husband return the children’s passports to the wife no later than 7 days after returning from overseas.
11. If the wife or husband travel either interstate or overseas and are unable to care for the children for two or more consecutive nights during which the children are in their care pursuant to these orders, the other parent be provided with the first opportunity to care for the children during that period.
12. Each of the husband and the wife:
(a) are permitted to attend school and extracurricular events to which parents would ordinarily be invited, including but not limited to concerts and parent teacher interviews; and
(b) do all such things and sign all documents necessary to permit each of them to obtain all documents relating to each of the children’s education, including but not limited to reports, notices and newsletters, applications, and extracurricular activities.
13. If one or both children are ill or otherwise require medical attention:
(a) the husband and wife forthwith inform the other of the child’s condition and provide details of any treatment (including medication and other matters which must be attended to); and
(b) each parent be permitted to attend the children’s medical appointments, including when the children are not in their respective care.
14. Each of the husband and the wife provide to the other 28 days’ written notice of any proposed change of address and otherwise keep the other always informed of their telephone numbers and email addresses.
15. Each of the husband and the wife by themselves and/or their agents are hereby restrained by injunction from:
(a) abusing, insulting, belittling, or otherwise denigrating the other, or any member of the other parent’s family, to, or in the presence and/or hearing of, the children and/or allowing the children to remain in the presence of, or within the hearing of, any third party engaging in such behaviour; and
(b) discussing these proceedings in the presence and/or hearing of the children and allowing the children to remain in the presence of, or hearing of, any third party engaging in such behaviour save for explaining to the children the living arrangements pursuant to these orders; and
(c) showing to, or leaving accessible to, the children, any document connected with these proceedings.
PROPERTY
16. Within 10 days of the date of these orders the parties do all such acts and things, and sign all documents as may be required to sell by unconditional sale contract the real property situate at and known as CC Street, Town R in the State of New South Wales (“the Town R property”) on the following terms and conditions:
(a) the wife have the sole conduct of the sale;
(b) within 5 days of these orders the wife engage and instruct a real estate agent (“the selling agent”) and within 2 days thereafter the husband make the keys available to the wife and/or to the real estate agent (“the selling agent”);
(c) the reserve price and manner of sale be as determined by the wife, having regard to the recommendations of the selling agent, subject to the reserve price being not less than $2,150,000;
(d) the marketing costs for the sale of the Town R property be no more than $15,000 and be otherwise as determined by the wife with each of the husband and wife to pay one half of such costs and to pay such costs immediately upon being so requested by the selling agent;
(e) settlement of the sale of the Town R property occur within such timeframe as may be agreed between the parties in writing and within 21 days of the date of these orders and failing agreement as determined by the wife solely save that the settlement date shall not exceed 90 days;
(f) the wife solely engage and instruct the conveyancer to undertake the conveyance of the sale of the Town R property; and
(g) the husband ensure that the Town R property is neat and tidy (including removal of general rubbish and overgrowth) at the time of any inspection and on the day of any auction.
17. Upon settlement of the sale of the Town R property the proceeds of sale be applied in the following manner and priority:
(a) firstly, to pay all outstanding costs (including conveyancing costs) and commissions of the sale;
(b) secondly, to discharge the NAB Town R Land loan account number …57 (as secured over the Town R property and/or as secured over B Street, Suburb C (“the B Street property”)) and the NAB Town R Construction loan account number …86 (as secured over the B Street property); and
(c) thirdly, the balance then remaining (“the net proceeds”) to the wife subject to Order 18 herein.
18. If the net proceeds of sale of the Town R property exceed the sum of $290,013 then the equity differential between $290,013 and the actual sale price derived equity, shall be divided between the parties as to 70 per cent to the wife and 30 per cent to the husband.
19. The husband is to pay all outstanding utilities, rates, outgoings, council fees, and land taxes for the Town R property up to the date of settlement of the sale of the property.
20. Within 7 days of a request by the wife, the husband provide to the wife such documents and information as may be required by the wife to enable her to obtain advice to calculate the capital gains tax (if any) payable by her in relation to the sale of the Town R property.
21. Liberty is granted to the husband to bid on and/or purchase the Town R property.
22. Liberty is granted to the wife to provide a copy of these orders to:
(a) the selling agent;
(b) National Australia Bank (NAB); and
(c) the conveyancer engaged by her to undertake the conveyance in relation to the sale of the Town R property.
23. Any remaining balance in the trust account of the wife’s solicitors from the sale of 2 K Street, Town L in the State of Victoria be forthwith transferred to the wife and each party do all acts and things and sign all documents as may be required to effect such transfer.
24. Within 120 days of the date of these orders, or upon the settlement of the sale of the Town R property, whichever is the later, the husband do all acts and things and sign all documents necessary to:
(a) transfer to the wife all his right, title, and interest in the B Street property, at the wife’s expense as to conveyancing costs; and
(b) pay all outstanding rates in relation to the B Street property up until the time of the transfer.
25. Within 60 days of the date of these orders the parties shall do all such acts and things and sign all documents as may be required to sell by unconditional sale contract the real property situate at and known as 1 DD Street, Suburb EE in the State of Victoria (“1 DD Street property”) on the following terms and conditions:
(a) the wife have the sole conduct of the sale;
(b) within 14 days of these orders the wife engage and instruct a real estate agent (“the selling agent”) and within 2 days thereafter the husband make the keys available to the wife and/or to the real estate agent (“the selling agent”);
(c) the reserve price and manner of sale be as determined by the wife, having regard to the recommendations of the selling agent and subject to the reserve price being not less than $1,200,000;
(d) the marketing costs for the sale of the 1 DD Street property be no more than $15,000 and be otherwise as determined by the wife with each of the husband and wife to pay one half of such costs and to pay such costs immediately upon being so requested by the selling agent;
(e) settlement of the sale of the 1 DD Street property occur within such timeframe as may be agreed between the parties in writing and within 21 days of the date of these orders and failing agreement as determined by the wife solely save that the settlement date shall not exceed 90 days;
(f) the wife solely engage and instruct the conveyancer to undertake the conveyance of the sale of the 1 DD Street property; and
(g) the husband ensure that the 1 DD Street property is neat and tidy at the time of any inspection and on the day of any auction.
26. Upon settlement of the sale of the 1 DD Street property the proceeds of sale be applied in the following manner and priority:
(a) to pay all costs, commissions and expenses of sale;
(b) secondly, to discharge the balance of the FF Bank mortgage secured against 1 DD Street;
(c) thirdly, in payment of any outstanding rates or taxes due and owing against the property; and
(d) fourthly, the balance then remaining (“the net proceeds”) to the wife subject to Order 27 herein.
27. If the net proceeds of sale of the 1 DD Street property exceed the sum of $586,000 then the equity differential between $586,000 and the actual sale price derived equity, shall be divided between the parties as to 70 per cent to the wife and 30 per cent to the husband.
28. The husband is restrained from entering any lease with respect to the 1 DD Street property without first obtaining the wife’s written consent.
29. The husband retain, to the exclusion of the wife, his sole proprietorship of GG Street, Suburb EE in the State of Victoria (“the GG Street property”).
30. The husband pay, or reimburse the wife with respect to, and remain liable for and indemnify the wife for:
(a) all claims, demands and judgments (including legal costs, penalties and interest) by or on behalf of HH Pty Ltd including pursuant to or arising from (to not include the wife’s costs of the District Court of NSW proceeding):
(i) the construction contract signed mid-2020 between HH Pty Ltd and the parties;
(ii) the NSW Civil and Administrative Tribunal (“NCAT”) proceedings file number … and …;
(iii) the Supreme Court of NSW proceedings; and
(iv) all legal costs as taxed/assessed or agreed between the parties from JJ Lawyers incurred and payable by the wife in respect of the NCAT and Supreme Court of NSW proceedings;
(b) all past, current and/or future liabilities in relation to KK Pty Ltd; and
(c) all past, current and/ or future liabilities in the name of either of the parties to LL Pty Ltd including any Director’s Loans to include that any amount owing by the wife to LL Pty Ltd is assigned to the husband.
31. The husband pay, indemnify the wife and keep her indemnified (and procure a release from any primary liability where possible) in relation to any and all liabilities including taxation liability of, or arising from, the wife’s involvement or association with the Leon Trust (including LL Pty Ltd, the interest in MM Pty Ltd as trustee of the NN1 Unit Trust, the interest in OO Pty Ltd as trustee for the NN2 Unit Trust) or any other entities directly or indirectly with which the husband has been involved.
32. The wife within 14 days hereof provide to the husband any of his remaining watch collection that she has in her possession and control.
33. In default of the husband complying with any of his obligations pursuant to these orders and remaining in default of any obligation for 7 days, then pursuant to s 106A of the Family Law Act 1975 (Cth):
(a) the wife Ms Bonnay be and is hereby appointed to execute all deeds and/or instruments in the name of the husband Mr Leon as required and to do all acts and things to give validity and operation to the deed and/or instruments; and
(b) in respect of any transfer of land, Kylie Sanders of Taussig Cherrie Fildes (solicitor for the wife) be and is hereby appointed to do all such acts and things required on behalf of the husband to effect the electronic conveyance of the transfer of properties and/ or any property referred to in these orders via PEXA.
34. Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a) each party be solely entitled to the exclusion of the other to all property (including chooses in action) in the possession of such party as at the date of these orders and without limiting the generality thereof:
(i) the wife retain:
A. the contents of the B Street property;
B. the partial property settlement which she received pursuant to previous orders of the Court;
C. her Motor Vehicle 3;
D. her superannuation; and
E. all cash in her bank account.
(ii) the husband retain:
A. the partial property settlement which he received pursuant to previous orders of the Court;
B. his household contents including paintings as they appear in the assets of the parties and the watches, jewellery, art and furniture possessed by him;
C. the Leon Trust (including LL Pty Ltd, the interest in MM Pty Ltd as trustee of the NN1 Unit Trust, the interest in OO Pty Ltd as trustee for the NN2 Unit Trust);
D. PP Pty Ltd;
E. his superannuation; and
F. all cash in his bank account.
(b) monies standing to the credit of the parties in any joint bank account be retained by the wife;
(c) insurance policies remain the sole property of the owner thereof;
(d) each party forego any claims he or she may have to any superannuation or related benefits belonging to or earned by the other; and
(e) each party pay, be solely liable for and indemnify the other against:
(i) any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(ii) any liability in that party's sole name including credit cards or loans.
35. There is liberty to apply with respect to the implementation of these property settlement orders.
36. All previous extant property orders be discharged.
37. Otherwise, all extant applications be dismissed, and the matter removed from the list.
Note: The form of the Order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the Order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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