Naggar and Sotto
[2007] FamCA 502
•11 May 2007
FAMILY COURT OF AUSTRALIA
NAGGAR & SOTTO [2007] FamCA 502
FAMILY LAW - PROPERTY - Settlement in relation to marriage
FAMILY LAW - CHILDREN - With whom a child lives - Equal time
Family Law Act 1975 (Cth)
APPLICANT: Mr Naggar
RESPONDENT: Ms Sotto
2ND RESPONDENT: J Pty Ltd
FILE NUMBER: SYF 2029 of 2003
DATE DELIVERED: 11 May 2007
PLACE DELIVERED: Sydney
JUDGMENT OF: Steele J
HEARING DATE: 2 - 5 April 2007 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Tockar
SOLICITOR FOR THE APPLICANT: McDonnell Milne Toltz
COUNSEL FOR THE RESPONDENT: Mr Ladopoulos
SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers
SOLICITOR FOR THE 2ND RESPONDENT: Burrell Solicitors Orders
Parenting Orders
(1)That the child a son (“[the child]”) born … December 1999 live with the husband and wife as follows:-
(a)During school terms, on a week about basis with changeovers occurring each Friday after school.
(b)For one half of all New South Wales gazetted school holidays with the husband as agreed between the parties and failing agreement for the second half of all school holidays in the odd years commencing 2007 and the first half of each school year in the even years commencing 2008 and for the purpose of this Order the husband shall be responsible for collecting the child from school or alternatively the wife’s residence and returning the child to school or the wife’s residence, whichever may be applicable.
(c)If the husband’s birthday falls during a period when the child is not already living with the husband then on the husband’s birthday from 12 noon to 4:00 pm wherein the husband will collect the child and return him to the wife’s residence. In the event that the husband’s birthday falls on a school day the husband shall spend time with the child from after school until 7:30 pm and for the purpose of this Order the husband shall collect the child from school and return the child to the wife’s residence.
(d)If the child’s birthday falls during a period when the child is not already spending time with the husband then the child shall spend time with the husband for a period of four hours as agreed between the parties and in the event that the parties do not agree this shall occur between 12 noon and 4:00 pm and for the purpose of this Order the husband is required to collect the child from the wife’s residence or school at the commencement of this period and deliver the child to the wife’s residence at the completion of the period.
(e)In the event that Father’s Day does not fall within a period that the husband is not already spending time with the child then the child shall spend time with the husband from 9:00 am to 6:00 pm each Father’s Day and for the purpose of these Orders the husband is required to collect the child from the wife’s residence at the commencement of this period and deliver the child to the wife’s residence at the completion of this period.
(f)If the wife’s birthday falls during a period when the child is living with the husband then on the wife’s birthday the wife shall spend time with the child from 12 noon to 4:00 pm and in the event that the wife’s birthday falls on a school day the wife shall spend time with the child from after school until 7:30 pm and for the purpose of this Order the wife shall collect the child from school and return the child to the husband’s residence at 7:30 pm.
(g)If the child’s birthday falls during a period when the child is living with the husband then the child spend time with the wife for a period of four hours as agreed between the parties and in the event that the parties do not agree this shall occur between 12 noon and 4:00 pm and for the purpose of this Order the wife is required to collect the child from the husband’s residence or school at the commencement of this period and deliver the child to the husband’s residence at the completion of the period.
(h)In the event that Mother’s Day falls within a period during which the child is living with the husband then the child shall spend time with the wife from 9:00 am to 6:00 pm each Mother’s Day and for the purpose of this Order the wife is required to collect the child from the husband’s residence at the commencement of this period and deliver the child to the husband’s residence at the completion of this period.
(i)That in respect of Christmas and notwithstanding the Orders in relation to Christmas holidays:-
(i)The child shall spend time with the wife from 6:00 pm on 23 December until 10:00 pm on 24 December.
(ii)The child shall spend time with the husband from 10:00 pm on 24 December until 6:00 pm on 26 December.
(iii)The changeovers on Christmas Eve shall be amended to 11:00 pm in 2009 and 2010 and midnight thereafter.
(2)That the party with whom the child is not living for the time being be allowed to communicate with the child by telephone each Wednesday between the hours of 6:00 pm and 7:00 pm.
(3)That the child’s Passport be held in the Registry of the Family Court of Australia at Sydney and only to be released or used with the written consent of both parties.
(4)That whenever the child’s Passport from time to time becomes due for renewal, the parties do all things necessary to effect the renewal of the Passport and in the event that one of the parties refuses then a Registrar or Deputy Registrar of the Family Court of Australia pursuant to Section 106 of the Family Law Act 1975 be authorised and empowered to execute such documents on behalf of the parties.
(5)That each of the husband and the wife be restrained from removing the child from the Commonwealth of Australia without the written consent of the other party or Order of the Court.
(6)That without further Order of the Court the husband and the wife be each restrained from permanently relocating the child outside of the Sydney metropolitan area.
(7)Pursuant to Section 65DA(2) and Section 62B of the Family Law Act, THE COURT DIRECTS the parties to note:-
(a)That the orders made continue in force until varied (though the Court may vary the orders by consent) and impose upon each of the parties:-
(i)an obligation to do all reasonable things to give effect to the orders; and
(ii)an obligation not to do anything (without lawful excuse) which would be in breach of the orders or would encourage others to breach the orders or to interfere with the exercise or performance of the powers, duties or responsibilities which a person may have under the orders.
(b)The contents of the document entitled “Parenting Orders – obligations, consequences and who can help Fact Sheet” which I now publish and hand a copy to each of the parties. This sets out:-
(i)the penalties which may apply, or other things which may occur, if you breach the orders made; and
(ii)details of who can assist parties to adjust to and comply with the orders made.
Property Orders
(8)That within 90 days of the date of these orders, the husband shall pay to the wife the sum of $83,659.
(9)That immediately upon the husband having complied with the preceding order the parties shall each take all necessary steps and execute all necessary documents to:-
(a)transfer to the wife the whole of the husband’s right title and interest in the property situate at and known as A property in the State of New South Wales and being the whole of he land contained in Certificate of Title Folio Identifier … (“the [A] property”) to be transferred to the wife, free and unencumbered; and
(b)transfer to the husband the whole of the wife’s right title and interest in the properties situate at and known as:
(i)W1 property in the State of New South Wales and being the whole of the land contained in Certificate of Title Folio Identifier … ; and
(ii)W2 in the State of New South Wales and being the whole of the land contained in Certificate of Title Folio Identifier …
(“the [W] properties”).
(10)That in the event that the husband and/or wife has not complied with Orders 8 and 9 above, the husband and the wife:-
(a)Sign all documents and do all things necessary to transfer to the wife free of encumbrances the property at A.
(b)forthwith take all necessary steps and execute all necessary documents to cause the W properties to be sold by such method as the husband and the wife may agree to in writing or, failing such agreement by:
(i)listing the W properties with a licensed real estate agent as agreed between the husband and the wife, or failing agreement, with a licensed real estate agent as appointed by the then President of the Real Estate Institute of New South Wales (“the Agent/Auctioneer”) for the sale of the former matrimonial home by public auction at the earliest possible date;
(ii)executing all documents requested by the Agent/Auctioneer for the sale of the property at a reserve price to be agreed between the husband and the wife;
(iii)if no price is agreed, requesting the Agent/Auctioneer to recommend a reserve price to be placed on the property for the purpose of the auction sale and accept such reserve price;
(iv)paying to the Agent/Auctioneer any sums requested for commission and advertising expenses in relation to the auction;
(v)co-operating in every way with the Agent/Auctioneer in relation to the auction of the property; and
(vi)attending at the auction sale and negotiate with the highest bidder in the event that the reserve rice is not reached and accept the advice of the Agent/Auctioneer as to the acceptance of a price less than the reserve price.
(c)Do all acts and things necessary to procure that upon the sale of the property the proceeds of sale be paid in the following manner and priority:-
(i)in payment of the amount required to discharge the mortgage held by Westpac Bank over the W properties;
(ii)in payment of the Agent/Auctioneer’s commission and auction expenses (if any) due on the sale;
(iii)in payment of legal costs on sale;
(iv)in payment to the wife of the sum of $83,659;
(v)interest at the rate stipulated by Rule 17.03 of the Family Law Rules 2004 on the amount remaining unpaid pursuant to Order 8 such interest to be calculated on the amount outstanding on a daily basis from the date due to the date of payment in full; and
(vi)in payment of the balance to the husband.
(11)That except as these orders provide to the contrary:-
(a)the husband is solely entitled, as against the wife, to all other assets and resources presently in his possession or control including any superannuation benefits and any moneys held in bank accounts in his name; and
(b)the wife is solely entitled, as against the husband, to all other assets and resources presently in her possession or control including any superannuation benefits and any moneys held in bank accounts in her name.
(12)That in the event that any party refuses or neglects to execute any deed or instrument necessary to give effect to all or any of the orders made herein, the Registrar of the Court be appointed pursuant to s. 106A to execute the deed or instrument in the name of such party and to do all other acts and things necessary to give validity and operation to the deed or instrument.
(13)The Court NOTES the following:-
(a)That the moneys held in the Westpac Children’s Foundation Plan with policy number … , in the Wife’s name, are held in trust for the child of the marriage, … .
(b)That the moneys held in the above Plan together with any further moneys as may be deposited into the plan and any moneys resulting from any interest or other growth in the fund, are to be used exclusively for the child’s welfare, education and that the parties agree that any withdrawals made from the Plan are to be accounted for with appropriate supporting documentation.
(14)Liberty to apply.
FAMILY COURT OF AUSTRALIA AT SYDNEY FILE NUMBER: SYF 2029 of 2003
Mr Naggar Applicant
And
Ms Sotto Respondent
REASONS FOR JUDGMENT
1.These are proceedings for parenting orders and property settlement. The parenting proceedings relate to a seven year old boy (“[the child]”). The proceedings originally included a spousal maintenance claim by the wife but at the commencement of the trial the wife’s counsel announced that would be abandoned. There was a suggestion that there may be an issue about the child’s name but in the result that was not pursued.
2.The parties separated on 29 December 2002 after a period of about five and a half years cohabitation. The child, who is now seven years and four months of age, initially resided principally with the wife but since September 2003 has had equal time with each of his parents, although the periods have been broken up into a number of short periods.
3.J Pty Ltd (“the company”) was joined as the second respondent in the proceedings. It claimed a right to an occupation fee from the wife in respect of the premises occupied by her. An agreement was reached and orders made at the commencement of trial which resulted in J being removed from the proceedings.
4.The husband contends for equal time on a week about basis. The wife contends for orders providing for the child to live with her and spend every alternate weekend with the husband from after school Thursday until Monday morning and one night overnight in the other week of the two week cycle (i.e. five nights per fortnight).
5.There are reports of Dr R dated 11 October 2004 and 28 April 2006 dealing with the parenting issues. He has, in effect, recommended that a shared parenting arrangement be put in place. He suggests, however, that it be changed to a week about basis. Dr R has not been required for cross examination by either of the parties.
6.The husband, the wife and the company have each been separately represented, though the company’s solicitor was excused very early in the proceedings after it was removed as a party and consent orders were made.
7.The wife contends that the contribution based entitlement of the parties should be assessed at 40/60 in the husband’s favour with a 10 – 20 per cent adjustment to her for section 75(2) factors, making an overall distribution of 50 – 60 per cent to her. The husband contends for a contribution based entitlement in his favour of 67/33 with an adjustment to the wife of 2 – 3 per cent for section 75(2) factors, making an overall adjustment of 65/35 in his favour.
Short History
8.The wife was born on … December 1973 and is now 33 years of age. She is in employment as a manager with a firm, R Company. She resides at premises A. The child, lives with her for seven days per fortnight. She presently receives child support of $444 per month. She earns $46,000 per annum ($884 per week).
9.The husband was born on … August 1972 and is now 34 years of age. He is an assessor with a Bachelor of Commerce degree and conducts, with an associate, the company N Pty Ltd, which in a partnership with his partner’s company, conducts the business of T Company. He has been in a relationship with Ms B since December 2003 but does not reside with her. The husband pays $444 per month child support for the child. The level of his earnings is the subject of dispute.
10.The parties commenced cohabitation on … April 1997 and were married on … July 1999. The parties separated after five and a half years cohabitation on … December 2002. A decree nisi was pronounced which became absolute on … May 2004.
11.There is only one child of the marriage, a son born … December 1999, who initially lived principally with the wife following separation but since September 2003 has lived with each of the parties on a shared time basis. The child is seven years and four months of age and he is in year 2 at S School at N.
The Law to be Applied in the Parenting Proceedings
12.The objects of Part VII of the Act are set out in Section 60B, which provides as follows:-
“60B(1) The objects of this Part are to ensure that the best interests of the children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
60B(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
13.Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, the Court must have regard to the best interests of the child as the paramount consideration. Section 60CC provides that in determining what is in the child’s best interests, the court must consider the matters set out in Section 60CC (2) and (3). Those subsections set out some fifteen matters which the Court must consider, some as Primary Considerations and others as Additional considerations. So far as relevant, I have considered those matters.
14.Further, Section 61DA provides that in determining which orders are in the child’s best interests the court must (unless there are reasonable grounds to believe a parent has engaged in abuse of the child or another child in the family group or has engaged in family violence) apply a presumption that it is in the child’s best interests for the parents to equally share parental responsibility. The presumption may however be rebutted if the court is satisfied that it would not be appropriate for the parents to have equal shared parental responsibility.
15.Additionally, Section 65DAA provides that if the Court proposes to make an order providing for equally shared parental responsibility (see Section 65DAC), the Court must consider whether the child should spend equal time with each parent and whether it is reasonably practicable and in the child’s best interests for the child to do so.
16.If the Court makes an order for equally shared parental responsibility but does not make an order for equal time with each parent, the Court must, in determining what is in the child’s best interests, consider whether it is reasonably practicable and in the child’s best interests for the child to spend “substantial and significant time” with each parent (Section 65DAA(2) and (3)).
17.In considering the issue of what is “reasonably practicable” the Court is required to consider the matters in Section 65DAA(5).
The Law to be Applied in the Property Proceedings
18.The approach to be taken is set out in Section 79 of the Act. Section 79(2) provides that the Court shall not make an order under the section unless it is satisfied that in all the circumstances, it is just and equitable to make the order. I am required in considering what order should be made to take into account the respective contributions of the parties referred to in Section 79(4)(a)(b) and (c). I am required to take into account in addition the effect of any proposed order upon the earning capacity of the parties pursuant to Section 79 (4)(d), the matters referred to in Section 75(2) so far as they are relevant, any other order made under the Act affecting a child and any child support under the Child Support Assessment Act that a party has provided, is to provide or might be liable to provide in the future.
19.The first step in the task, which I have to perform, is to determine the extent and value of the property, the liabilities and the financial resources of the parties at the time of the hearing.
20.I have taken a global approach to the evaluation of the property of the parties and their respective contributions, rather than an asset by asset approach.
21.In this case the parties have, at my direction, produced a list of assets, liabilities and financial resources. The list provided by the parties, as it has evolved during the trial but ultimately agreed, is as follows:-
| Property Description | Joint H/W | Husband’s Valuation | Wife’s Valuation | Agreed or actual valuation | ||||
| ASSETS | ||||||||
| 1. | [W1 property] | J | 620,000 | 620,000 | 620,000 | |||
| 2. | [W2 property] | J | 625,000 | 625,000 | 625,000 | |||
| 3. | [A property] | J | 750,000 | 750,000 | 750,000 | |||
| 4. | Interest in [JM] Trust Pty Ltd | H | 829,437 | 829,437 | ||||
| 5. | Westpac Savings Account No. […] | H | 216 | 216 | ||||
| 6. | Credit Union | W | 142 | 142 | ||||
| 7. | NAB Term Deposit | W | 5,467 | 5,467 | ||||
| 8. | Jeep Motor Vehicle | W | 7,000 | 7,000 | ||||
| 9. | “Hand- Made” Motor Vehicle | H | 10,000 | 10,000 | ||||
| 10. | Wife’s Household Contents | W | 3,000 | 3,000 | ||||
| 11. | Husband’s Household Contents | H | 2,000 | 2,000 | ||||
| Total Assets | 2,852,262 | |||||||
| LIABILITIES | ||||||||
| 12. | Mortgages secured over [W1 and W2 properties] | J | 411,912 | 411,912 | 411,912 | |||
| 13. | Wife’s Credit Card | W | 11,936 | 11,936 | ||||
| 14. | Husband’s Credit Card | H | 2,500 | 2,500 | ||||
| 15. | Loan Account in respect of purchase of office in North Sydney | H | 264,300 | 264,300 | ||||
| 16. | [N] Pty Ltd | H | 81,269 | 81,269 | ||||
| 17. | Debt to [J] Pty Ltd | H | 350,000 | 350,000 | ||||
| Total Liabilities | 1,121,917 | |||||||
| Net Non-Superannuation Assets | 1,730,345 | |||||||
| SUPERANNUATION ENTITLEMENTS | ||||||||
| 18. | [Naggar] Family Trust | H | 67,271 | 67,271 | ||||
| 19. | [Naggar] Family Trust | W | 29,212 | 29,212 | ||||
| 20. | Additional Entitlements | W | 2,284 | 2,284 | ||||
| Total Superannuation Entitlements | 98,767 | |||||||
NOTE:
1. The wife is to have the option to purchase the [A] property at $750,000 being its agreed value.
2. No superannuation splitting order is sought.
3. The husband is to have the option to purchase the wife’s interest in the two properties at [W1 and W2] at the agreed value of $1.245 million.
The Facts
22.The parties commenced cohabitation in April of 1997 but they had some short time prior to that purchased in their joint names a property at [W1] for the sum of about $310,000. Each of the parties’ parents contributed $10,000 and when the purchase was completed the parties moved in to live together.
23.At that time, the wife was in full time employment with U Company and the husband was employed as an assesor with T Company. After a time, the husband, whilst continuing to work for T Company, did so as a contractor using as a vehicle his own company NV Pty Ltd.
24.At the time of cohabitation, the wife had some personal effects and minimal equity in a motor vehicle. It appears that the husband also had minimal assets at that time.
25.The parties were able to borrow the balance of the purchase money for the property at W1 from the Advance Bank and in about February 2000 the matrimonial home was demolished and the parties commenced to build four town houses on the land. The subdivision had been approved earlier during 1998. During the time the construction of the four town houses was taking place, the parties lived with the husband’s parents for about three months, with the wife’s parents for something of the order of three to six months and for the balance of the period, they rented an apartment.
26.In July 1999 the parties were married and in November of that year, the wife ceased work with the real estate agents firm where she was working at that time, shortly prior to the birth of the parties’ child, a son, who was born on … December 1999.
27.It seems that in early 2001 the husband and wife completed the development at W properties which comprised four townhouses and they moved to reside in one of the townhouses. They were undertaking the sale of the other three townhouses. In September or October of 2001 the parties agreed, with the husband’s parents, to purchase properties at A1 and A2, using as the vehicle for the proposed joint development and subdivision, a company J Pty Ltd in which each of the couples had a 50 per cent interest. The parties then moved into reside in the property at A1 in late 2001 with the intention of developing those properties whilst they resided there. The A1 and A2 property development was expanded by the purchase of an adjoining property at P and ultimately a subdivision was approved which divided the property into five separate titles with three dwellings. They were all sold off except for the property at A1 where initially the husband and later the wife has continued to live.
28.About the same time, i.e. in late 2001, the parties purchased a property at C for $550,000 which was ultimately re-sold in December 2003 for $680,000. The husband has continued since shortly after separation to live in the property jointly owned by the parties at W1.
29.In 2005 the husband was, through his company NV Pty Ltd, working as a contractor for T Company. T Company went into liquidation and the husband and his now partner, Mr D, took advantage of the situation and purchased the business of T Company. Mr D was a senior employee of T Company, which for reasons which have not been the subject of evidence, lost its professional indemnity insurance cover and was unable to continue in business. Mr D paid $40,000 for what has been described as the “intellectual property” of T Company and then arranged to pool resources with the husband, who was conducting NV Pty Ltd and had a current policy of professional indemnity in place. These factors meant that the husband and Mr D could continue to operate the business of T Company and all the work in progress without interruption. The husband transferred a 50 per cent interest in NV Pty Ltd to Mr D and that company changed its name to N Pty Ltd and traded as TN Company. If it be assumed that the free market forces are likely to have resulted in the husband and Mr D contributing equally to the jointly owned enterprise, it may be argued that the husband’s contribution, NV Pty Ltd, had a value at that time of about $40,000 (being the amount Mr D paid for the intellectual property of T Company). The husband has not in these proceedings argued to the contrary. The value of that company was built up during the marriage and the wife made an indirect contribution to it. Subsequently the husband’s half share in N Pty Ltd was transferred from his name to JM Pty Ltd for purposes associated with asset protection.
30.The business of TN Company appears to be a successful one and the husband is joint Managing Director. The shareholding between he and Mr D is equally distributed.
31.The husband’s Form 13 filed on 27 November 2006 indicated he receives by way of drawings from the company the sum of $1,348 per week ($70,000 per annum) plus income from the business of about $2,000 per week. During cross examination, he conceded that his salary or drawings from the business was $70,000 per annum making with his profits from the business as disclosed a total income of $174,000 per annum. He conceded however that the company made profits for the year ended 30 June 2006 of some $320,000 and that his half share of that was $160,000, which arguably makes his total earnings some $230,000 on an annual basis, or $4,423 per week. The husband asserted however that he didn’t get all that money because it was “ploughed back into the business”. The husband, who is an assessor and has a Bachelor of Commerce degree, conceded that if that was the case, he would expect that the balance sheet of the company would disclose those moneys somewhere, perhaps by way of a credit to him in the loan account of some $160,000. He was referred to the documents prepared by Ms H and conceded that no figures appeared in her documents which could explain the difference. At page 34 of Ms H’s report, she has appended a schedule which appears to indicate a net profit for the company for the year ended 30 June 2006 in the sum of $400,000. Even if those moneys were retained to fund the expansion of the business or to cover contingent liabilities and not paid by way of dividends, they do give an indication of the husband’s earning capacity which, of course, is the relevant issue for consideration pursuant to section 75(2). The husband’s counsel has argued that the evidence of Ms H is that the husband has an earning capacity of $175,000 (See Ms H’s report page 36). It is my view that such a submission mistakes Ms H’s expressed view. She allowed for the purposes of valuing the company a notional salary of $175,000 to the husband. That does not have regard to the additional income received by the husband from the division of profits of the business.
32.The husband seemed to me to be unduly vague about his earnings from the company and its value to him. In the absence of some other explanation, I would readily accept that his earning capacity is, in fact, of the order of $200,000 - $250,000. In addition to that of course the jointly owned property at W2 is leased out at a rental of just under $400 per week and the husband receives half of that which, with the wife’s half share, goes to reduce the mortgage.
33.The husband agreed that in the period of time when he worked as a contractor/assessor through NV Pty Ltd with T Company, he worked all day and often worked for a couple of hours per night. He conceded he might do up to 10 hours a week at night time.
34.The value of the husband’s 50 per cent interest in the business of TN Company is represented in the agreed list of assets and liabilities by item 4 of the schedule which is the husband’s interest in the JM Pty Ltd. The value is agreed in the sum of $829,437. During the hearing however, the husband produced a document which was in the form of a proof of evidence which became Exhibit H1. The contents of the document record that there had been notice of potential claims made by a mortgage insurer in respect of four valuations all carried out on behalf of TN Company by the same assessor. The husband’s evidence is that three of the properties have already been the subject of a mortgagee’s sale and that a deficiency had resulted. There is however, no evidence before the Court of the extent of the deficiency in those cases where a loss is said to have occurred and no evidence of whether the assessor who carried out the valuations has independent insurance. The husband does not suggest that the contents of the document (Exhibit H1) should adversely affect the agreed value of the asset but rather, suggests that it may be a factor to be taken into account in considering the section 75(2) matters in so far as it demonstrates a risk associated with the conduct of the business. Whilst that may be true to some extent, without more information I am not able to say how significant the problem is.
35.The husband resides in the one of the W properties and his evidence is that from the time he moved into the property so that only the remaining one was leased out, the rental received was insufficient to satisfy the required payments under the mortgage with the result that he himself contributed the balance. He claimed a credit for contribution by him in that way. During cross examination, however, he was shown two bank statements which became Exhibit W1. They indicate that in September of 2004 the husband’s company, NV Pty Ltd, was paying rent to the husband which was going from the company account into his personal account at the rate of $1,200 per month. The husband conceded that NV Pty Ltd didn’t lease any premises because his work was done at a desk provided by T Company in their premises or at home at nights. He said it could have been for a home office but found it difficult to justify a payment of $1,200 per month in that regard. He conceded that the moneys to pay off the mortgage were coming from that account. In effect then, it appears the profits of NV Pty Ltd were being reduced by the amount of the monthly payment for rent (and possibly reducing his child support liability) and the money he was using to pay the balance of the mortgage was actually coming from his business. He conceded that if rent was being received by him, it should have been included in his income tax return but that matter was not investigated during the hearing. To the extent that the rental from the other W property was used to pay the mortgage, the husband conceded that was a jointly owned property so that the income received from rent was actually joint income of himself and the wife. This is an example of evidence which throws into question the husband’s asserted lack of sophistication in financial matters.
36.The husband was asked about the details of his financial statement filed on 27 November 2006. Page 3 of the Financial Statement contains provisions for the maker of the statement to indicate any benefits from his employment or business. The husband disclosed no such benefit and indicated he received no such benefits. In fact, however, the husband conceded, that he drove a Ford Territory motor vehicle which was registered in the name of the company and was used by him for his private purposes as well as business purposes. The husband agreed that he should have included the provision of the car in the document but he claimed that he looked to his then solicitor for guidance and hadn’t received it.
37.The husband was asked further about the income which he received from the business now conducted by him and his partner, Mr D, through their respective corporations. He was referred to the liquidators report (page 12) which was annexure “N” to his affidavit filed 27 November 2006. This was the liquidators report provided at the time of liquidation of T Pty Ltd. It is understood that the husband and Mr D, through their various entities took the business over on about 1 April 2005. The liquidator’s report indicates that the operating profits for the nine months to 31 March 2005 was some $249,815. The profits for the previous two years were $461,000 and $436,000 respectively. Those figures when taken with the figures appearing at page 34 of the report of the independent expert, Ms H, indicate a healthy position indeed and would suggest that their business for the years ended 30 June 2005 and 30 June 2006 totalled profits of some $648,000 after payment of wages and assessor’s fees. The husband has at least a prospective right to one half of those profits, though questions of income tax and the need to fund the expansion of the business may arise.
38.These significant profit figures, bearing in mind that the husband is drawing a salary of some $70,000 per annum, show the husband in a poor light when it is considered that for a period of some five months from July 2006 until December 2006, the husband was paying child support of 67 cents per month. Despite that fact and a concession made during cross examination that such a sum would go nowhere near the expenditure required to look after the child, he indicated that he was insulted by the suggestion that his request for shared time with the child may be motivated by some desire to limit his child support. Whilst I don’t think that the husband’s quest for equal time with the child is itself motivated by a desire to limit the child support, I do believe that that the husband is reluctant to pay child support and the wife will have recurring difficulties in collecting child support from the husband as the years progress. The husband conceded that it would have been an easy matter for him to have paid the wife extra money in that period of time between July and December 2006 but he claimed that it was not possible to do so satisfactorily without going through the Child Support Agency, which he said was unsatisfactory to deal with. The husband’s answer to many of the things for which he could not give a proper explanation was one of a lack of sophistication and lack of understanding of circumstances and financial issues and a lack of advice from his solicitor. I do not accept that the husband is as limited in financial matters as he would suggest by any means and believe that he has taken a very hard nosed approach to the litigation regardless of its impact upon the wife and possibly through her, the child. He is, in my view, much more astute about financial matters than he concedes.
39.The husband was asked about his past use of steroids. He said that he had not used steroids since 2003 and that he had no intention of doing so again. I don’t think the husband’s past use of steroids has in the present context any real significance.
40.The husband was asked about events which are recorded in paragraphs 61 of his affidavit relating to things which occurred on 29 December 2002 following a birthday party at SB which was held for the child’s birthday. The wife asserts that, in effect, the husband tricked her into a situation where, without giving her warning, he took the child away to the country for some few days. He claims he had a conversation with the wife’s father in which he explained to him what he was doing so as to give the wife some time to think about her position and the marriage and that the wife’s father concurred in what he was doing. It is certainly apparent that he did take the child away to the country and didn’t return until 5 or 6 January after having been located by police at the request of the wife. The wife’s father filed an affidavit but it did not address that issue. Whist it is now more than four years since those events are said to have occurred and the importance of them may have diminished, the fact is that if the wife’s version of the events is correct, then it paints a picture of the husband as someone who is prepared to act in a manipulative and deceitful way. In the absence of any evidence on the matter from her father, I do not, however, conclude that the wife’s version of events is correct.
41.The wife was cross examined at some length. She said that the present arrangement with the child, for the parties to have seven nights out of each 14, had been in place since September 2003. She conceded that whilst she had been informed that the husband had a relationship with Ms B since December 2003, she did not learn of it until 9 April 2004. She asserted it was prior to that time that she had formed the view that they should go back to old orders which provided for every alternate weekend and one night in the other week with the husband.
42.Counsel for the husband was able to isolate three problems which the wife had put forward which troubled her in relation to the husband having equal time with the child. They were: 1. Steroid use, 2. Problems about Ms B and 3. The husband’s work commitments. She was asked to comment on those.
43.Having considered those matters the wife said that she didn’t believe the husband was taking steroids at present, nor did she believe he was likely to do so in the future. She conceded there were no longer any problems about the relationship with Ms B and that the husband had adjusted his work commitments so that he could be available to spend time with the child. She said that the husband’s time available for the child was now much the same as hers, in that she had also adjusted her work commitments to enable her to be available for the child. She had a continuing concern however that the husband’s devotion to work may in the future reduce his time for the child.
44.The wife said that she had in late 2005 obtained new employment and is now employed as a manager with R Company at an income of $46,000 per annum. She conceded she had not told the husband anything about that new employment until very recently.
45.The wife said that in 2005 she enrolled in a university course in science with a view to becoming a school teacher. She said she attended university for a year but didn’t sit the exams at the end of the year because she found it all too much having regard to what was going on with the Court case and the like. She said she did hope to pursue the degree in future years which she believed she could do on a part time basis. She agreed that from the time of separation she had not in fact worked until the end of 2005.
46.The wife said that so far as the J Pty Ltd venture was concerned, she had found the goods for the venture and the husband and his father had arranged the company side of it. She said the venture could have been done without his parents’ involvement. She said that during the time they were together the husband had worked very hard and she agreed that although she stopped work shortly before the child was born she had not started work again until November 2005.
47.The wife apparently still has some difficulties coming to grips with the loss of the marriage but the difficulties do seem to be diminishing with time. She impressed me as an honest witness who sometimes didn’t listen to the questions as carefully as she might but did her very best to give truthful answers.
The Section 60CC(2) and (3) Matters
The Primary Considerations
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents.
As Dr R, whose evidence I accept, has recorded, the child has a close loving relationship with each of his parents and he is developing well. He has recorded that the child is strongly attached to both parents and wants to maintain a good relationship with each of them.
(b)The need to protect the child from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
No such need exists.
Additional Considerations
(a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The issue for determination is whether time spent with the father should be as the mother contends, every alternate weekend from Thursday evening until Monday morning and one night overnight in the other week of a two week cycle, or week about as the husband contends.
Dr R, at page 8 of his second report, has recorded that the child finds the existing arrangement a little difficult and would prefer a week with each parent. He said that whilst the child had at times, put forward conflicting views, his expressed wish was to have blocks of time with each parent and to feel comfortable that the parents accept them.
(b)The nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child)
Dr R has recorded that the child has a close loving relationship with the husband and that the relationship is solid. He has recorded that the child is extremely close to his mother and in his earlier report had recorded that he had a close loving relationship with her. Dr R has recorded, and I accept, that the wife is well capable of putting the child’s interest ahead of her own.
It seems that the child has a good relationship with both sets of grandparents and with the husband’s partner, Ms B.
(c)The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (having regard to the matters spelt out in s.60CC(4)).
As I have earlier recorded, it is my view that the wife is more able to put the child’s interests ahead of her own than is the husband who loves the child but I think sees many of the issues as a contest between him and the wife. This may be demonstrated by his failure to pay any significant child support for the five month period from July to December 2006. Nonetheless, the parties, by and large, although they have difficulty communicating, have been able to ensure that each other has the agreed time with the child and there has been no suggestion that any serious issues relating to the child have not been able to be dealt with between them. I think the wife has had some difficulty in accepting the breakdown of the marriage and with the passage of time her sense of loss is diminishing. I believe the parties will be able to communicate at a better level as time goes by.
(d)The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The child has been spending every second weekend and every Tuesday and Thursday evening with the husband (i.e. seven nights out of 14). In the orders that I propose, the quantum of the contact will not change and the child will have equal time with each of the parents. The only concern may be that the child will be spending a whole week without living with his mother at any one time and it may be that given his very close relationship with her, that may create some initial difficulties. I am confident however that any difficulty will be short lived.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
There is nothing relevant.
(f)The capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child
to provide for the needs of the child, including emotional and intellectual needs.
Each of the parents had in their own way the capacity to provide for all the needs of the child.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
The only relevant factor appears to be that the wife comes from an Italian background and some difficulties were envisaged as a consequence of the fact that her family celebrates Christmas on Christmas Eve. The parties have ultimately agreed that the child should spend every Christmas Eve with the wife until about 10:00 pm and he will then spend the rest of Christmas Eve and Christmas day with the husband and his family. That is a sensible compromise which the parties have arranged. It is to their credit and a good indication for the future that they have been able to reach such a compromise.
(h)If the child is an Aboriginal Child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right.
There is nothing relevant.
(i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (having regard to the matters spelt out in s.60CC(4)).
Each of the parties is responsible although, in my view, the wife is more likely to be selfless in her pursuit of the child’s well being than the husband may be.
(j)Any family violence involving the child or a member of the child’s family.
There is none.
(k)Any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person.
There is none.
(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
There is nothing relevant.
(m)Any other fact or circumstance that the court thinks is relevant.
There is nothing relevant.
The Resolution of the Parenting Issues
48.The parties are agreed that there should be equal shared parental responsibility.
49.The child is already spending equal time with the parents, though presently the husband’s seven days per fortnight are made up of one weekend from Friday evening until Monday morning and every Tuesday and Thursday night. The wife contends for a reduced period of time with the husband so that the child would spend time from Thursday night until Monday morning on one weekend and one overnight stay in the other week (i.e. five nights out of 14). The wife did, however, concede in evidence that if the child was to have equal time, then she thought that the week about arrangement was likely to be less disruptive especially as he matures and is required to do more homework.
50.The child has a good loving relationship with each of his parents and is doing well. In my view, while the wife does not carry any onus, the existing situation seems to be working and the wife has not established any basis in my view for reducing the equality of time which now exists.
51.Dr R suggests that there should be equal time and the child has, with some provisos, expressed a preference for week about time. I accept his evidence in that respect, which accords with my own view.
52.In my view, the child’s best interests will be served by the child spending equal time with each of the parents on a week about basis with changeovers to occur on a Friday evening after school. The other parenting matters have all been the subject of agreement and are covered by the orders I will make.
The Resolution of the Property Issues
The Section 79(4) Contributions
53.The more significant matters, though not recorded in any particular order, are as follows:-
·The parties’ initial contributions were about equal but of little significance.
·The parties’ respective parents contributed $10,000 each to the purchase of the W property, which enabled them to get started.
·The parties both worked until about one month before the child’s birth when the wife ceased work.
·From the time of the child’s birth in December 1999 until separation occurred in December 2002, the family operated as the traditional family where the husband went to work and the wife remained home looking after the child. That was the agreement at the time and in the course of that arrangement, the wife was the principal homemaker. The husband, although he was working very hard, did however, involve himself with the child in a significant way.
·In the period since separation, the husband has worked very hard and the most significant asset, being the husband’s interest in the JM Trust, has substantially been built up in the period since separation. It is, of course, the fact that NV Pty Ltd was an operating entity at the time gave him a basis for his contribution to the commencement of the existing, successful and valuable business. To the extent that NV Pty Ltd was built up during the course of the marriage, then the wife made some contribution to that initial business but the valuation business now conducted by the husband, through the JM Trust, is a very successful business indeed and is the result, no doubt, of the husband’s astuteness in making the most of the opportunities which he was able to observe and his hard work.
·The husband paid the wife spouse maintenance in the period from February 2003 (some few months after separation) up until the time of trial. Spouse maintenance was paid in the sum of $250 per week and the Orders which were made in February 2003 were made by consent. The wife did obtain employment in about December 2005 but the husband was not informed until the time of, or shortly before, trial.
·The husband contends that in the time since separation, the wife has not had to want for anything because she has received spousal maintenance, a car provided, a roof over her head and child support. As to those matters:-
-The property being occupied by her and at times the child was a jointly owned property and the husband was also occupying, free of rent, a jointly owned property.
-The car was provided out of joint funds.
-She received spousal maintenance for a period for longer than she may otherwise have been entitled if all the facts had been known, but the spousal maintenance she received was by no means excessive.
-To the extent that the husband contends that he paid the mortgage on the remaining W property, then the money was coming partly from rental from the jointly owned property so that the wife contributed her share. As to the balance, although it came from the husband’s business, it was being paid apparently on the basis of some notional rent for a home office, which meant that the company was paying it to him. It is not clear whether the payment of those moneys by the husband’s company reduced his income in such a way that his liability for child support was also reduced.
·As I have earlier recorded, the wife undertook the principal functions caring for the child, especially in the period up to separation and until September 2003, after which time the parties have had the child on an equal shared basis, so that the wife’s dominant position of home maker has not existed in the period since September 2003.
·The parties’ superannuation entitlements have an agreed value of $98,767, which represents just over 5 per cent of the total pool. The husband’s superannuation entitlements are slightly more than double those of the wife’s but there are no separate figures provided for the value of their respective superannuation at the time of separation and to the extent that their respective entitlements were built up during the marriage, then they would have each made some contribution to the entitlement of the other party. In those circumstances, I do not propose to separately assess the contribution based entitlement to superannuation, but to include it as part of the overall net asset pool.
·The development activities that were carried out during the marriage, especially those at the beginning of the marriage were activities in which they jointly contributed, jointly borrowed funds and jointly took the financial risk, although in more recent times the husband has seemed to have had more involvement. Although I have earlier recorded that the parents have spent equal time with the child in the period since September 2003, it is, I think, not in dispute that although the child has spent an equal number of nights with the parents, he has spent a significant majority of the days with the wife during the school holiday periods which have occurred.
54.It seems to me, that having regard to those various matters a proper assessment of the parties’ respective contribution based entitlements would be in the sum of 60 percent to the husband and 40 per cent to the wife.
The Section 75(2) Matters
55.The more significant matters to be considered, again in no particular order, are as follows:-
·The husband is aged 34 and the wife is aged 33. Each of the parties is in good health, although it must be said that the wife seems to have carried some emotional burden in coming to terms with the breakdown of the marriage. The effects of that seem to be now much reduced.
·I have earlier recorded the issues relating to the husband’s earning capacity. The wife’s present capacity, working hours 9:00 am to 3:00 pm, is established at $46,000 per annum. Whilst there is no evidence that employment for longer hours at a higher rate is readily available to her, it may be thought that when she settles in to her relatively newly acquired position, it may be possible for her to have an increased earning capacity. There is no evidence before me which enables me to quantify that. The husband, on the other hand, has an earning capacity vastly in excess of the wife and appears to have a thriving business.
The husband suggests that the business which he now conducts is a successor to the earlier T business which went into liquidation because they lost their professional indemnity insurance cover. It is suggested that in the short time since the husband has been involved in the business, there has been notice of four potential claims in relation to valuations carried out by an employed assessor (or perhaps an assessor acting as a contractor). No evidence has been put forward however, as to the potential quantum of any claim or even whether a claim is likely. Certainly there has been no evidence to suggest that their professional indemnity insurance may be at risk. In those circumstances, whilst I recognise that as an ongoing difficulty with businesses of that type, nonetheless, its impact on the husband’s potential earning capacity is relatively minor.
·The parties will share, in equal proportions, the care of the child.
·The husband has a commitment to pay child support for the child, presently in the sum of $444 per month. Neither party has any other obligations to support other persons. It is my view, however, that the husband, who has paid child support as assessed only and in circumstances where at times the assessed figure was clearly not consistent with his income, is likely to be reluctant to pay child support and the wife will, in my view, have some difficulty in consistently recovering the child support to which she may otherwise be entitled.
·In the few years, especially, immediately following the child’s birth in the time up to separation and possibly for 12 months after that, the wife took herself out of the work place to be a live at home mother and home maker. There is, I think, little doubt that the impact of the break up of the marriage was emotionally difficult for her and her absence from the work force has meant it will take her some little time to rebuild her earning capacity, which in any event is unlikely to reach anything near the proportions which the husband has.
·Neither party is cohabiting with any other party.
56.Having regard to those various matters, it seems to me that there should be an adjustment in respect of those section 75(2) matters in favour of the wife of 7.5 per cent leading to an overall distribution of the parties’ property as to 52.5 percent to the husband and 47.5 per cent to the wife.
The Effect of the Property Orders
57.The wife will receive:-
A property (Item 3) 750,000 Credit Union Account (Item 6) 142 NAB Term Deposit (Item 7) 5,467 Jeep Motor Vehicle (Item 8) 7,000 Household contents (Item 10) 3,000 Naggar Family Trust Superannuation (Item 19) 29,212 Additional Superannuation Entitlements (Item 20) 2,284 Cash payment from husband 83,659 880,764 Less: Credit Card Debt (Item 13) 11,936 868,828
58.The husband will receive:-
W1 property (Item 1) 620,000 W2 property (Item 2) 625,000 Interest in JM Pty Ltd (Item 4) 829,437 Westpac savings account … (Item 5) 216 Handmade motor vehicle (Item 9) 10,000 Household contents (Item 11) 2,000 Naggar Family Trust Superannuation (Item 18) 67,271 2,153,924 Less: Mortgages over W1 and W2 properties (Item 12) 411,912 Credit Card (Item 14) 2,500 Loan account in respect of Nth Sydney Office (Item 15) 264,300 N Pty Ltd (Item 16) 81,269 Debt to J Pty Ltd (Item 17) 350,000 Cash payment to wife 83,659 1,193,640 960,284
59.I am satisfied that the effect of the orders so made will be just and equitable.
The Orders
Parenting Orders
(1)That the child, a son, (“[the child]”) born … December 1999 live with the husband and wife as follows:-
(a)During school terms, on a week about basis with changeovers occurring each Friday after school.
(b)For one half of all New South Wales gazetted school holidays with the husband as agreed between the parties and failing agreement for the second half of all school holidays in the odd years commencing 2007 and the first half of each school year in the even years commencing 2008 and for the purpose of this Order the husband shall be responsible for collecting the child from school or alternatively the wife’s residence and returning the child to school or the wife’s residence, whichever may be applicable.
(c)If the husband’s birthday falls during a period when the child is not already living with the husband then on the husband’s birthday from 12 noon to 4:00 pm wherein the husband will collect the child and return him to the wife’s residence. In the event that the husband’s birthday falls on a school day the husband shall spend time with the child from after school until 7:30 pm and for the purpose of this Order the husband shall collect the child from school and return the child to the wife’s residence.
(d)If the child’s birthday falls during a period when the child is not already spending time with the husband then the child shall spend time with the husband for a period of four hours as agreed between the parties and in the event that the parties do not agree this shall occur between 12 noon and 4:00 pm and for the purpose of this Order the husband is required to collect the child from the wife’s residence or school at the commencement of this period and deliver the child to the wife’s residence at the completion of the period.
(e)In the event that Father’s Day does not fall within a period that the husband is not already spending time with the child then the child shall spend time with the husband from 9:00 am to 6:00 pm each Father’s Day and for the purpose of these Orders the husband is required to collect the child from the wife’s residence at the commencement of this period and deliver the child to the wife’s residence at the completion of this period.
(f)If the wife’s birthday falls during a period when the child is living with the husband then on the wife’s birthday the wife shall spend time with the child from 12 noon to 4:00 pm and in the event that the wife’s birthday falls on a school day the wife shall spend time with the child from after school until 7:30 pm and for the purpose of this Order the wife shall collect the child from school and return the child to the husband’s residence at 7:30 pm.
(g)If the child’s birthday falls during a period when the child is living with the husband then the child spend time with the wife for a period of four hours as agreed between the parties and in the event that the parties do not agree this shall occur between 12 noon and 4:00 pm and for the purpose of this Order the wife is required to collect the child from the husband’s residence or school at the commencement of this period and deliver the child to the husband’s residence at the completion of the period.
(h)In the event that Mother’s Day falls within a period during which the child is living with the husband then the child shall spend time with the wife from 9:00 am to 6:00 pm each Mother’s Day and for the purpose of this Order the wife is required to collect the child from the husband’s residence at the commencement of this period and deliver the child to the husband’s residence at the completion of this period.
(i)That in respect of Christmas and notwithstanding the Orders in relation to Christmas holidays:-
(i)The child shall spend time with the wife from 6:00 pm on 23 December until 10:00 pm on 24 December.
(ii)The child shall spend time with the husband from 10:00 pm on 24 December until 6:00 pm on 26 December.
(iii)The changeovers on Christmas Eve shall be amended to 11:00 pm in 2009 and 2010 and midnight thereafter.
(2)That the party with whom the child is not living for the time being be allowed to communicate with the child by telephone each Wednesday between the hours of 6:00 pm and 7:00 pm.
(3)That the child’s Passport be held in the Registry of the Family Court of Australia at Sydney and only to be released or used with the written consent of both parties.
(4)That whenever the child’s Passport from time to time becomes due for renewal, the parties do all things necessary to effect the renewal of the Passport and in the event that one of the parties refuses then a Registrar or Deputy Registrar of the Family Court of Australia pursuant to Section 106 of the Family Law Act 1975 be authorised and empowered to execute such documents on behalf of the parties.
(5)That each of the husband and the wife be restrained from removing the child from the Commonwealth of Australia without the written consent of the other party or Order of the Court.
(6)That without further Order of the Court the husband and the wife be each restrained from permanently relocating the child outside of the Sydney metropolitan area.
(7)Pursuant to Section 65DA(2) and Section 62B of the Family Law Act, THE COURT DIRECTS the parties to note:-
(a)That the orders made continue in force until varied (though the Court may vary the orders by consent) and impose upon each of the parties:-
(i)an obligation to do all reasonable things to give effect to the orders; and
(ii)an obligation not to do anything (without lawful excuse) which would be in breach of the orders or would encourage others to breach the orders or to interfere with the exercise or performance of the powers, duties or responsibilities which a person may have under the orders.
(b)The contents of the document entitled “Parenting Orders – obligations, consequences and who can help Fact Sheet” which I now publish and hand a copy to each of the parties. This sets out:-
(i)the penalties which may apply, or other things which may occur, if you breach the orders made; and
(ii)details of who can assist parties to adjust to and comply with the orders made.
Property Orders
(8)That within 90 days of the date of these orders, the husband shall pay to the wife the sum of $83,659.
(9)That immediately upon the husband having complied with the preceding order the parties shall each take all necessary steps and execute all necessary documents to:-
(a)transfer to the wife the whole of the husband’s right title and interest in the property situate at and known as A in the State of New South Wales and being the whole of he land contained in Certificate of Title Folio Identifier … (“the [A] property”) to be transferred to the wife, free and unencumbered; and
(b)transfer to the husband the whole of the wife’s right title and interest in the properties situate at and known as:
(i)W1 property in the State of New South Wales and being the whole of the land contained in Certificate of Title Folio Identifier … ; and
(ii)W2 property in the State of New South Wales and being the whole of the land contained in Certificate of Title Folio Identifier …
(“the [W] properties”).
(10)That in the event that the husband and/or wife has not complied with Orders 8 and 9 above, the husband and the wife:-
(a)Sign all documents and do all things necessary to transfer to the wife free of encumbrances the property at A.
(b)forthwith take all necessary steps and execute all necessary documents to cause the W properties to be sold by such method as the husband and the wife may agree to in writing or, failing such agreement by:
(i)listing the W properties with a licensed real estate agent as agreed between the husband and the wife, or failing agreement, with a licensed real estate agent as appointed by the then President of the Real Estate Institute of New South Wales (“the Agent/Auctioneer”) for the sale of the former matrimonial home by public auction at the earliest possible date;
(ii)executing all documents requested by the Agent/Auctioneer for the sale of the property at a reserve price to be agreed between the husband and the wife;
(iii)if no price is agreed, requesting the Agent/Auctioneer to recommend a reserve price to be placed on the property for the purpose of the auction sale and accept such reserve price;
(iv)paying to the Agent/Auctioneer any sums requested for commission and advertising expenses in relation to the auction;
(v)co-operating in every way with the Agent/Auctioneer in relation to the auction of the property; and
(vi)attending at the auction sale and negotiate with the highest bidder in the event that the reserve rice is not reached and accept the advice of the Agent/Auctioneer as to the acceptance of a price less than the reserve price.
(c)Do all acts and things necessary to procure that upon the sale of the property the proceeds of sale be paid in the following manner and priority:-
(i)in payment of the amount required to discharge the mortgage held by Westpac Bank over the W properties;
(ii)in payment of the Agent/Auctioneer’s commission and auction expenses (if any) due on the sale;
(iii)in payment of legal costs on sale;
(iv)in payment to the wife of the sum of $83,659;
(v)interest at the rate stipulated by Rule 17.03 of the Family Law Rules 2004 on the amount remaining unpaid pursuant to Order 8 such interest to be calculated on the amount outstanding on a daily basis from the date due to the date of payment in full; and
(vi)in payment of the balance to the husband.
(11)That except as these orders provide to the contrary:-
(a)the husband is solely entitled, as against the wife, to all other assets and resources presently in his possession or control including any superannuation benefits and any moneys held in bank accounts in his name; and
(b)the wife is solely entitled, as against the husband, to all other assets and resources presently in her possession or control including any superannuation benefits and any moneys held in bank accounts in her name.
(12)That in the event that any party refuses or neglects to execute any deed or instrument necessary to give effect to all or any of the orders made herein, the Registrar of the Court be appointed pursuant to s. 106A to execute the deed or instrument in the name of such party and to do all other acts and things necessary to give validity and operation to the deed or instrument.
(13)The Court NOTES the following:-
(a)That the moneys held in the Westpac Children’s Foundation Plan with policy number …, in the Wife’s name, are held in trust for the child of the marriage, … .
(b)That the moneys held in the above Plan together with any further moneys as may be deposited into the plan and any moneys resulting from any interest or other growth in the fund, are to be used exclusively for the child’s welfare, education and that the parties agree that any withdrawals made from the Plan are to be accounted for with appropriate supporting documentation.
(14)Liberty to apply.
I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele.
Associate:
Date: 11 May 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as NAGGAR & SOTTO
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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