FAMILY COURT OF AUSTRALIA
| MCDERMOTT & MCDERMOTT AND ORS | [2017] FamCA 376 |
| FAMILY LAW – PROPERTY – Where subsequent to separation Receiver and Liquidator appointed to parties’ corporate and partnership entities – Where significant adverse credit findings as to the husband’s evidence – Where husband retained significant funds the property of the receivership/liquidation – Where issues as to the proper “pool of assets” for adjustment purposes – Where husband’s financial and other misconduct adversely affect the ongoing receivership/liquidation and the costs thereof. FAMILY LAW – CHILDREN – Where parties agree as to equal shared parental responsibility – Where parties agree that children to live primarily with the mother – Where discrete issue for determination the children’s time with the father – Consideration of the children’s best interests. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA, 61DA(2), 61DA(3), 61DA(4), 65DAA, 65DAA(6), 75(2), 79, 79(1), 79(2), 79(4), 90SM(4) |
| Bevan & Bevan [2014] FamCAFC 19 |
| APPLICANT: | Mr McDermott |
| FIRST RESPONDENT: | Ms McDermott |
| SECOND RESPONDENT: | B Pty Ltd (In Liquidation) |
| THIRD RESPONDENT: | Mr M (Liquidator) |
| FILE NUMBER: | SYC | 70 | of | 2014 |
| DATE DELIVERED: | 19 May 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 29 February 2016, 1, 2, 3, 4 and 7 March 2016, 13 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hodgson & Ms Picker |
| SOLICITOR FOR THE APPLICANT: | Hancock Alldis & Roskov Lawyers & Notaries Public |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Lethbridge SC & Ms Eldershaw |
| SOLICITOR FOR THE FIRST RESPONDENT: | Campbell Paton & Taylor |
| COUNSEL FOR THE THIRD RESPONDENT LIQUIDATOR: | Mr Miller SC & Ms Stanton |
| SOLICITOR FOR THE THIRD RESPONDENT LIQUIDATOR: | Collin Biggers & Paisley |
Orders
PARENTING
That all previous parenting orders be discharged.
That the father and mother have equal shared parental responsibility for the children K born … 2006 and AA born … 2009.
That the children live with the mother.
That the children spend time with the father as agreed between the father and mother in writing such writing to include SMS or email communication and failing agreement as follows:
a)during school…
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- AGLC
- McDermott & McDermott [2017] FamCA 376
- Case
- [2017] FamCA 376
- Decision Date
CaseChat Overview and Summary
The court's reasoning in the property division was heavily influenced by the husband's financial misconduct and the consequent appointment of a Receiver and Liquidator. The court applied principles relating to the identification and division of assets when corporate and partnership entities are involved, especially where there has been an intermingling of assets and a lack of clear record-keeping. The court also considered the impact of the husband's conduct on the receivership and liquidation process. In parenting matters, the court's determination of the children's time with the father was guided by the overarching principle of the children's best interests, as stipulated in the relevant legislation.
The court made detailed orders regarding parenting, establishing equal shared parental responsibility with the children living primarily with the mother, and outlining specific arrangements for the children's time with the father during school terms and holidays, including provisions for birthdays and other special occasions. The orders also included provisions for communication between parents and children, information sharing regarding the children's welfare, and restrictions on parental criticism. In relation to property, the court ordered the husband to transfer his interests in several properties and leaseholdings to the wife, declared the wife the sole beneficial owner of assets at a specific property and of the partnership's assets, and ordered the husband to pay a sum of $226,000 to the wife. The court also made provisions for the execution of documents by the wife on behalf of the husband if he failed to comply with the orders.
Orders
Orders of the court
PARENTING
1.
That all previous parenting orders be discharged.
2.
That the father and mother have equal shared parental responsibility for the children K born … 2006 and AA born … 2009.
3.
That the children live with the mother.
4.
That the children spend time with the father as agreed between the father and mother in writing such writing to include SMS or email communication and failing agreement as follows:
a) during school term each fourth weekend for a block of four nights from 4.00 pm Thursday to 4.00 pm Monday and for the purpose of implementing this order:
(i) with the first of such blocks shall coincide with the third weekend after the resumption of school term;
(ii) provided always that should such time coincide with the Mother’s Day weekend or sports club (as opposed to sports club camp) the children’s time with the father shall be changed to the following weekend without interruption to the sequence of weekends that otherwise would apply and for the purposes of implementation of this order the wife shall inform the father by SMS or email not less than seven days prior to the weekend in question of any forthcoming sports club event that would interfere with the children’s time with the father as provided above.
b) during school holidays:
(i) in even numbered years from 9.00 am on the first Saturday following the conclusion of school term to 4.00 pm on the Saturday closest to the midpoint of the school holiday period; and
(ii) in odd numbered years from 9.00 am on the Saturday falling closest to the midpoint of the school holiday period to 4.00 pm on the last Saturday of the school holiday period;
(iii) if the children are to spend time with the father during a period that conflicts with sports club camp then that week of the children’s time with the father being the week from Saturday to Saturday shall be changed to the week that follows on from the last week of the holiday period that the children would spend with the father in even numbered years or the week that immediately precedes the holiday period that the children spend with the father in odd numbered years.
5.
That notwithstanding the above orders:
a) the children shall spend time with the father on the children’s birthdays from 3.30 pm to 7.00 pm if the birthday falls on a school day and from 1.00 pm to 7.00 pm if the birthday falls on a non-school day provided always that the father shall advise the mother by SMS or email communication not less than 72 hours prior to the birthday whether he proposes to spend time with the children as provided;
b) the children shall spend time with the father on Father’s Day from 10.00 am to 7.00 pm provided always that the father shall advise the mother by SMS or email communication not less than 72 hours prior to Father’s Day whether he proposes to spend time with the children as provided;
c) except when Easter occurs during a school holiday period the children shall spend time with the father on Easter Sunday in even numbered years from 10.00 am to 7.00 pm provided always that the father shall advise the mother by SMS or email communication not less than 72 hours prior to Easter Sunday whether he proposes to spend time with the children as provided.
6.
The mother and father shall be at liberty to have telephone communication with the children while they are in the care of the other parent each Monday, Wednesday and Friday between 6.00 pm and 8.00 pm and on Christmas Day, Easter Sunday, Father’s Day, Mother’s Day, each party’s birthday and the children’s birthdays by placing a call to either of the children’s mobile phone numbers.
7.
That the mother and father shall ensure that the other is kept informed as soon as is reasonably practicable of:
a) any serious medical problems or illnesses suffered by the children or either of them, including the details of any hospital or medical centre to which the children have or child has been taken in case of an emergency;
b) any medication that has been prescribed for the children or either of them that needs to be taken during the time the child is in the care of the other;
c) any appointments with any specialist medical doctor, dentist or other health professional and the name and contact details of such professional;
d) unless the appointment was attended by both, the outcome of any attendance by the children or either of them on any specialist medical or other health professional, including copies of any medical reports provided by that professional within 3 days of receipt of such report;
e) any changes to their residential address and other contact details within 48 hours of the change occurring;
f) any other relevant matter to the welfare of the children or either of them.
8.
That both the mother and father are permitted to liaise directly with the children’s education provider, sporting bodies and/or extracurricular organisations to obtain any necessary information about their progress and both are to do all things necessary to authorise the school, sporting bodies and/or other organisations to release such information as may be requested by the other to the extent permitted by law.
9.
That both the mother and father shall provide authorities to any education provider that provide services to the children to provide to both parents copies of the children’s school reports, school circulars, newsletters, school photograph order forms and invitations to attend any school activities to which parents are invited to attend and for both parents to be named on all school and extracurricular records as emergency contacts.
10.
That both the mother and father shall do all acts and things to authorise any medical practitioner, dentist, counsellor or other health professional who treats the children or either of them to provide information to the other upon request by the other to the extent permitted by law.
11.
That both the mother and father are permitted to attend on parent teacher interviews, concerts, carnivals, sporting matches, training sessions, prize days, and other events involving the children or either of them at school or in the context of extra-curricular activities to which parents are ordinarily invited, notwithstanding that such event occurs at a time when the children are in the care of the other parent pursuant to these orders.
12.
That both the mother and father are restrained from criticising or denigrating the other or member of the other’s household and from discussing these proceedings in the presence or hearing of the children.
13.
That except as otherwise agreed by the mother and father in writing such writing to include SMS or email communication the father shall collect the children from the gate at the D Street property at the commencement of his time with the children and return the children to the front gate of the D Street property at the conclusion of his time with the children.
14.
That the mother provide to the father not less than two months’ notice in writing such writing to include SMS or email communication of any proposal by her to relocate the residence of the children outside the state of New South Wales.
PROPERTY
15.
That within 28 days from the date of these orders the husband do all things necessary to transfer to the wife his interest in the properties known as “D Street” and “Property BB”, E Town NSW.
16.
That within 28 days from the date of these orders the husband do all things necessary to transfer to the wife his interest in any lease holding, Crown Grant, water licence, clearing permit relating or attaching to any parcel or parcels of land comprised in D Street including Leases …, …, …, ….
17.
That within 28 days from the date of these orders the husband do all things necessary to transfer to the wife his interest in the property known as “Property CC” NSW being Certificate of Title Folio Identifiers … and ....
18.
That the wife be declared as against the husband the sole beneficial and legal owner of assets, equipment and stock owned by either of them situate on the property at D Street.
19.
That the partnership “Mr & Ms McDermott” be dissolved at midnight on the date the Receiver/Manager’s notification is sent to the parties and that thereafter the wife be declared against the husband the sole legal and beneficial owner of the assets, including plant and equipment, of the said partnership including but not limited to:
a) Tractor;
b) Excavator;
c) Scraper;
d) Backhoe;
e) Back Plough;
f) 4WD Regn ...
20.
That within 28 days from the date of these orders the husband pay to the wife the sum of $226,000.00.
21.
Pursuant to section 106A of the Family Law Act 1975 in the event that the husband refuses or neglects to comply with any direction or order to execute a deed or instrument as required by or to give effect to these orders within seven days of a written request by the wife or the receiver/liquidator, the wife is appointed to execute the deed or instrument in the name of the husband and to do all acts and all things necessary to give validity and operation to the deed or instrument.
22.
That in the event of any application for costs in relation to these proceedings then the applicant for any such costs order file and serve written submissions in support of such application within 28 days from the date of these orders and the respondent to any such application file written submissions in response within a further 14 days and that thereafter, absent any application for the Court to hear oral submissions judgement be reserved to Chambers.
23.
That otherwise applications before the Court are dismissed and proceedings removed from the active pending cases list.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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