Mendicino and Mendicino and Ors (No 7)

[2015] FamCA 575

FAMILY COURT OF AUSTRALIA

MENDICINO & MENDICINO & ORS (NO 7) [2015] FamCA 575

FAMILY LAW – PROPERTY – Final orders by consent – Where the parties have reached agreement and signed proposed final consent orders to give effect to that agreement – Where the Court is satisfied that it is just and equitable to make orders altering their interests in property and the proposed orders are appropriate, just and equitable.

FAMILY LAW – CHILDREN – Final orders by consent – Where the parties have reached agreement as to final parenting orders and signed proposed final consent orders to give effect to that agreement – Where the proposed orders are consistent with the recommendations contained in the single expert report – Where the Court is satisfied that the orders proposed by the parents are in the best interests of the children.

Family Law Act 1975 (Cth)

APPLICANT: Ms Mendicino

FIRST RESPONDENT: Mr Mendicino

SECOND RESPONDENT: Mr D Mendicino

THIRD RESPONDENT: Ms E Mendicino

FOURTH RESPONDENT: Mr F Mendicino

FIFTH RESPONDENT: G Pty Ltd

FILE NUMBER: BRC 875 of 2013

DATE DELIVERED: 20 July 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 20 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk QC with Mr SJ Williams

SOLICITOR FOR THE APPLICANT: Cooper Grace Ward Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Richardson SC with Dr Ingleby

SOLICITOR FOR THE FIRST 

RESPONDENT:

HopgoodGanim Lawyers

COUNSEL FOR THE SECOND, THIRD AND FIFTH RESPONDENTS: Dr Brasch QC

SOLICITOR FOR THE SECOND, THIRD AND FIFTH RESPONDENTS: Phillips Family Law

Orders

IT IS ORDERED THAT:

1. The hearing of these proceedings listed for ten (10) days commencing 20 July 2015 be vacated.

IT IS ORDERED BY CONSENT THAT:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and        comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS DIRECTED THAT:

1. The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

Property settlement

Retention of items by Wife

1.1The Wife receive/retain:

(a)any monies standing to the credit of the Wife in any bank accounts in her sole name;

(b)the funds already received by her pursuant to interim property, litigation funding and unallocated orders (approximating in total $2,700,000, of which the wife contends approximately $700,000 has been applied to the maintenance of herself and the children of the marriage); 

(c)the [German] motor vehicles with Queensland registration numbers … and …;

(d)the furniture, contents and all personal items currently in her possession including those located in the [L property] (subject to paragraph 1.3(c);

(e)the Wife’s superannuation entitlements/interests in:

(1)MLC Masterkey Plan; and

(2)AMP Employee Retirement Plan.

Cash payment to wife

1.2That the husband pay or cause to be paid to the wife the sum of $5,655,154.80, such sum to be paid as follows:

(a)$250,000 upon the execution of the binding financial agreement referred to below;

(b)A further $500,000 within 30 days of the date of orders issuing from the Court;

(c)A further $3,155,154.80 within 90 days of the date of orders issuing from the Court, to be paid in accordance with the irrevocable authority of the wife executed contemporaneously with these orders;

(d)A further $500,000 on or before 16 July 2016 (with the husband to deduct the wife’s 50% share of the single expert fees paid by him on her behalf from this payment); 

(e)A further $1,000,000 on or before 16 July 2017; and

(f)A further $250,000 on or before 16 July 2018.

Retention of items by Husband

1.3The Husband retain:

(a)any monies standing to the credit of the Husband in any bank accounts in his sole name;

(b)the furniture, contents and all personal items currently in his possession;

(c)his personal possessions remaining in the [Suburb L property], including his … bag and log book;

(d)the Husband’s superannuation entitlements/interests; and

(e)The Husband’s interests in each of the corporate entities and trusts in which he is a director, shareholder, appointor, or beneficiary, including:

(1)M Pty Ltd.

(2)N Pty Ltd.

(3)L Pty Ltd as trustee for the L Trust,

(4)H Pty Ltd as trustee for the C Investment Trust.

(5)C Holding Company Pty Ltd.

(6)C Pty Ltd (previously C Company Pty Ltd).

(7)C Asia Pte Ltd.

(8)Q Pty Ltd.

(9)J Pty Ltd as trustee for the J Trust.

(10)P Company Pty Ltd.

(11)CB Pty Ltd as trustee for the CB Trust.

(12)K Pty Ltd as trustee for the K Trust.

(13)G Pty Ltd as trustee for the Mr B Mendicino Family Trust.

(14)I Pty Ltd.

(15)O Pty Ltd as trustee for the O Trust.

(16)Y Pty Ltd.

General Retention of Property

1. That save and except for the property and financial resources dealt with pursuant to the terms of these orders, each party retain as his or her own property absolutely all assets of whatsoever description and wheresoever situate both real and personal of which that party is the legal owner or which is/are in the possession and/or control of that party as at the date of this Order.

Miscellaneous

1. That any duty levied pursuant to the Duties Act 2001 (Qld) payable on transactions arising from these orders or any documents executed pursuant to these orders be paid by the transferee spouse or the spouse receiving the benefit of same.

2. That the parties promptly comply with the requirements of the Duties Act and associated legislation and all requisitions issued by the Office of State Revenue in relation to any document executed or transaction pursuant to or putting into effect the terms and conditions of this order. In default of either of the parties hereto complying with any requisition so issued within fourteen (14) days of the date upon which any requisitions issue, the party not in default will be entitled to comply with any outstanding requisition and recover from the other party in default the costs and outlays incurred in complying with any requisition, such costs to be calculated in accordance with the Family Law Rules.

3. That each party do and procure the doing of all things and sign and procure the signing of all documents necessary to give full force and effect to the provisions of these Orders and in the event either party refuses or neglects to comply with any provision of this Order within fourteen (14) days of a written request to do so, then a Registrar of this Court at Brisbane is appointed to execute all documents in the name of that party and do all acts and things necessary to give validity and operation to this Order.

4. That save where otherwise noted in these orders, the transferee spouse prepare the documentation necessary to give effect to the provisions of these Orders at their cost and further be responsible for the payment of registration fees, if any, in relation to the transfer of the property to their name.

5. That the husband and wife each refrain from by her or himself, by her or his servant or agent, or in any other manner whatsoever disclosing to any other person, entity, organisation or body, any matter of a financial or monetary nature or any matter having a bearing to financial and monetary matters of the other of them (except if required by Law to do so).

6. That the husband be responsible for and meet payment when due of the husband’s debts and any other liability in his name not otherwise dealt with in these orders and do all acts and things, sign all documents and writings and pay all moneys necessary to indemnify and keep indemnified the wife from all claims, actions, suits or demands in relation to or arising out of such debts.

7. That the wife be responsible for and meet payment when due of the wife’s debts and any other liability in her name not otherwise dealt with in this order and do all acts and things, sign all documents and writings and pay all moneys necessary to indemnify and keep indemnified the husband from all claims, actions, suits or demands in relation to or arising out of such debts.

Indemnity

1. That the Husband shall henceforth indemnify and keep indemnified the Wife in respect of all and any actions, claims, demands or liabilities of any nature whatsoever including income tax, taxation arising pursuant to Division 7A of the Income Tax Assessment Act, goods and services tax, land tax, stamp duty and penalties or interest that may be levied on such assessments:

   (a)arising directly or indirectly by reason of the mortgage presently registered over the title of the property at R Street, Suburb L in the State of Queensland;

   (b)arising directly or indirectly by reason of the transfer to the Wife of any property by L Pty Ltd in its capacity as trustee of the L Trust;

   (c)arising directly or indirectly by reason of any distributions of income or dividends from any of the entities or trusts referred to in paragraph 1.3(e) and shall not make any further distribution or cause any further dividends to be declared to the Wife.

Parenting 

Parental Responsibility

1. Both parents shall have equal shared parental responsibility for the children, [AA] born … 2001, [BB] born … 2003, [CC] born … 2005 and [DD] born … 2008.

2. Each parent shall have sole responsibility for the day to day care, welfare and development of the children during the periods when the children are in that party’s care.

3. The parties shall have equal shared parental responsibility for the children including but not limited to:

   (a)choice of schools;

   (b)surgery and hospitalisation and medical treatment for any serious injury, illness, condition or disability including attendance of the children for whatever reason upon a child psychologist, counsellor, family therapist or psychiatrist;

   (c)decisions about religious and religious instructions and observance by the child; and

   (d)decisions about the child playing or being involved in a sporting, cultural, artistic or community activity including competition, training or meeting.

4. The parties shall consult each other by email or SMS text message and by telephone in the event of an emergency, to discuss and agree upon decisions concerning matters relating to the child’s long-term care, welfare and development and neither parent will make a decision in relation to these matters without having consulted with the other and reaching agreement.

Time with children

1. The children shall live with the mother and father in a week about equal shared care arrangement, with changeovers to be effected each Monday.

2. For the purposes of handover, the parent who shall commence spending time with the children shall collect them from their respective schools during school days or from the otherwise from the other parent’s residence.

3. The parenting time detailed in paragraph 15 is suspended during gazetted school holidays but shall recommence as if the holiday period had not taken place, save that for the resumption of school in January each year, the parent who did not have the children in their care at the conclusion of the December / January school holidays shall commence their time with the children in the first week of the first school term (such that if the children are to be with the father for the first week, their time with him will commence on the first Monday pursuant to paragraph 15). 

4. Unless otherwise agreed, for the purposes of school holiday periods:

   (a)For the Term 1 / Easter Holidays (including Good Friday and Easter Monday) in each odd year, the children will spend time with the mother and in each even year, the children spend time with the father;

   (b)For the Term 2 / June/July holidays in each year, the children will spend time with the father in each odd year and with the mother in each even year;

   (c)For the September/October school holidays, the children will spend time with the parents as follows:

   (1)The first half with the father in even numbered years and the second half in odd numbered years; and

   (2)The second half with the mother in even numbered years and the first half in odd numbered years.

   (d)For the December / January holiday period:

   (1)The first half with the Father in even numbered years and the second half with the Father in odd numbered years;

   (2)The second half with the Mother in even numbered years and the first half with the Mother in odd numbered years;

   (e)Subject to paragraph 18(f) the school holiday period is deemed to commence at 3.00 pm on the last day of school and end at 5.00 pm on the day immediately prior to school recommencing.

   (f)For the purposes of calculating the school holidays, the school holidays shall start only when all of the children have commenced school holidays and will end on the day before whichever child starts school first in the next school term.

   (g)For the purpose of changeovers during school holiday periods, the father will collect the children from the Mother’s residence at the start of his time with the children and the Mother shall collect the children from the Father’s residence at the start of her time with the children.

Special days

1. That each parent spend time with the children on special occasions at all times as may be agreed between the parents in writing and failing agreement then as follows:

   (a)On each of the children’s birthdays (and on the basis that the children are not on holidays), the parent who would not ordinarily spend time with the children on the children’s respective birthdays may spend time with the children from after school until 5:00pm if the birthday should fall on a school day and for not less than 4 hours if the birthday falls on a weekend at such times as may be agreed and failing agreement then from 9:00am – 12 midday.

   (b)On Father’s Day, should that day fall on a weekend when the children would otherwise be in the care of the Mother, the children are to be returned to the Father’s care at 5.00 pm on the Saturday before Father’s Day and remain in his care until 5.00pm on Father’s Day.

   (c)On Mother’s Day, should that day fall on a weekend when the children would otherwise be in the care of the Father, the children are to be returned to the Mother’s care at 5.00 pm on the Saturday before Mother’s Day and remain in her care until 5.00pm on Mother’s Day.

2. Unless otherwise agreed between the parents in writing:

   (a)The ‘Christmas period’ is defined as 5pm Christmas Eve until 5pm Boxing Day.

   (b)The children will spend the Christmas period with their father in even numbered years, commencing in 2016.

   (c)The children will spend the Christmas period with their mother in odd numbered years, commencing in 2015.

   (d)The parent who is to spend time with the children in the Christmas period will ensure that the children telephone the other parent on the morning of Christmas Day.

   (e)The parenting time detailed in paragraph 15 is suspended during the periods of time detailed in paragraph 18 and shall recommence at the end of that time.

Extra-curricular activities

1. The parents will jointly agree upon the extra-curricular activities for the children and ensure that the children are presented for those activities each week as required.  Either parent, without agreement from the other, is at liberty to make arrangements for the children to participate in extra-curricular activities for the children where such activities will not impact on the other parent’s time with the children.

2. Both parents are at liberty to attend all sporting and other activities that the children may be participating in, regardless of which parent’s care they are in at the time.

Telephone communication

1. That each parent be at liberty to contact the children at all reasonable times while they are in the other parent’s care.

2. In relation to telephone communication each parent shall:

   (a)Endeavour to make the child available to receive the telephone call from the other parent.

   (b)If the call cannot be answered, facilitate the children telephoning back as soon as practicable, provided it is not at an unreasonable time, or arrange for the child to telephone the other parent back at a convenient time.

   (c)Ensure that the child has privacy during the conversation with the other parent.

Exchange of information

1. That in the event the children require medical or hospital treatment, the parent then caring for the children will immediately inform the other parent via phone, SMS message or email in that order of priority.

2. That in the event an urgent decision must be made by either parent and the other parent is not able to be contacted after all reasonable attempts have been made or fails to respond to reasonable requests for information, the parent then caring for the children will make that decision and inform the other parent by the most immediate means possible.

3. That the mother and the father will make all decisions concerning any non-urgent medical procedures and treatment and non-urgent medication jointly.

4. Unless otherwise agreed, if the children are unable to attend school because of ill health, then the parent who has them in their care at the time should be responsible to care for them on that day until 3.00 pm, when the other parent shall collect them if it is a changeover day.

5. That both parties shall be entitled to attend any public or school social, sporting or educational event involving the children, including but not limited to theatre performances, sporting events, school activities, excursions, fetes, parent teacher interviews and functions, Christmas parties and other special occasions and that both parties communicate to the other party if arrangements are made for the children to attend such an event whilst the children are not in that party’s care.

6. That each party shall keep the other informed as to their residential address and mobile telephone number and advise the other of any change to those details within forty eight (48) hours of any change.

7. This Order is authority for any doctor, carer, teacher, hospital, childcare institution, preschool or school and any social, sporting or recreational organisation involved with the children to release such information regarding the children to the Mother and / or the Father as is reasonably requested by that parent.

8. The parents ensure:

   (a)The parent who has the children in their care will provide any notifications or communications they receive from the children’s respective schools to the other parent as soon as practicable;

   (b)where possible, copies are made of any awards or reward certificates received by the children and a duplicate copy is provided to the other parent as soon as practicable;

   (c)where possible, copies of any photographs, video or other media content featuring the children is provided to the other parent as soon as practicable;

9. During the time the children are with either parent, each parent will:

   (a)refrain from passing messages to the other parent through the children;

   (b)speak of the other parent respectfully;

   (c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that no other person denigrates or insults the other parent in the hearing or presence of the children.

Education

1. Unless otherwise agreed in writing:

   (a)the children [BB], [CC] and [DD] will attend [Z School] from grade 5 and for the balance of their secondary schooling; and

   (b)the child AA will attend [EE School] for the balance of her secondary schooling.

2. The parents each maintain a full set of school uniforms for each child, including sporting uniforms, for the children in their household.

3. The parents do all things reasonably necessary including providing any written consent that may be required to ensure the children attend upon [Ms FF] or such other psychologist agreed between the parties, for the purposes of counselling with the husband to meet the costs of such counselling.

4. The parents are to be the primary contact persons for the children’s respective schools and medical and health providers and any social, sporting or recreational organisations associated with the children.

Travelling

1. When the children are spending time with a parent during school holidays, that parent shall be at liberty to take the children overseas, provided:

   (a)The travelling parent shall provide the other parent with a copy of the children’s itinerary for the trip not less than 14 days’ prior to the commencement of the trip with the itinerary to include but not be limited to:

   (1)departure and return information including flight or vessel times and travel dates; and

   (2)a contact telephone number for the travelling parent and the children; at least 14 days prior to scheduled departure;

   (3)Details of each destination for the children and where they will be accommodated.

   (b)Both parents do all things necessary including signing all documents as may be required, including any renewal forms, to ensure the children hold a valid Australian passport at all times.

   (c)The children’s passports be held by the Father subject to:

   (1)the Father providing a copy of the children’s passports to the Mother for the purposes of making travel bookings;

   (2)the Father providing the children’s passports to the Mother upon the receipt of the travel itinerary referred to in paragraph 38(a) to allow the Mother to obtain any necessary travel visas.

   (d)During the trip the travelling parent is to facilitate the children communicating with the other parent by telephone or electronic communication such as Skype or Facetime at least once in every 7 days.

   (e)When the children arrive home from an international flight with either parent, the changeover does not occur until the following day at a mutually agreed time to allow the children to recover from their flight.

   (f)The parents agree to return from overseas flights no less than two days prior to the children returning to school.

   (g)The children’s passports are to be returned to the Father within 7 days’ of the children’s return to Australia.

Immunisation

1. That unless otherwise agreed between the parties, each of the children be immunised in accordance with the National Immunisation Program Schedule Queensland, published by Queensland Health and the husband shall undertake to have the immunisations carried out by a private doctor and not more than one per month.

Costs

1. There shall be no order as to costs between:

   (a)husband and wife; or

   (b)the wife and the second, third and fifth respondents.

2. The Court notes that may need to be determined a costs issue between the wife and the former fourth respondent and in that proceeding, the wife does not and shall not seek any order by way of indemnity or contribution to her own costs or any costs that she may be ordered to pay to the former fourth respondent as against the husband or the second third and fifth respondents.

3. That in the event of any costs application being outstanding or made in the future with respect to subpoena or otherwise, then the party who issued such subpoena shall indemnify the other parties to the proceedings in respect of the same and shall not seek any order by way of indemnity or contribution to their own costs or any costs that party may be ordered to pay to any other party.

4. That save for the costs issue referred to at paragraph 41 of these orders, all remaining applications be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mendicino & Mendicino & Ors (Consent Orders) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 875 of 2013

Ms Mendicino

Applicant

And

Mr Mendicino

First Respondent

And

Mr D Mendicino

Second Respondent

And

Ms E Mendicino

Third Respondent

And

Mr F Mendicino
Fourth Respondent

And

G Pty Ltd Pty Ltd

Fifth Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. A central and complex issue in the property and spousal maintenance proceedings (which were to be heard over 10 days of trial commencing today) was whether the husband was possessed of an interest in the C Trust constituting property amenable to an order under s 79 of the Family Law Act 1975 (Cth) (“the Act”). That essential difference is a very substantial one in monetary terms in terms of the pool or the balance sheet handed up as Exhibit 1.

2. Plainly, the consent orders that the parties have been able to negotiate represent a significant compromise by both the husband and wife on their respective positions and I acknowledge that each of the parties are well represented by experienced solicitors and counsel including senior counsel in reaching this compromise. 

3. I am satisfied that the property orders, which are also predicated upon a binding financial agreement and a child support agreement being entered into, are appropriate orders within the meaning of s 79 of the Act and it is just and equitable to make those orders and I make those orders.

4. With respect to the parenting orders, I have read the reports of Mr GG, the family consultant and single expert who has provided reports.  Plainly enough, the orders that have been negotiated and agreed by the parents are consistent with recommendations contained in the single expert report as to the children’s best interests.  The parties are to be congratulated on being able to negotiate agreed terms of parenting orders rather than having the Court impose upon them parenting orders determined by the Court.

5. For these reasons, I make the orders that have been initialled by each of the parties and their lawyers, now initialled by me and placed with the file.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 July 2015.

Associate:

Date:  22 July 2015