NEALES & GORDON

[2013] FamCA 1100

FAMILY COURT OF AUSTRALIA

NEALES & GORDON [2013] FamCA 1100

FAMILY LAW – PROPERTY

FAMILY LAW – PARENTING – Consent orders

APPLICANT: Mr Neales

RESPONDENT: Ms Gordon

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3683 of 2012

DATE DELIVERED: Friday, 22 November 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J. Bartal

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr A. Cinque

SOLICITOR FOR THE RESPONDENT:

Orders

BY CONSENT IT IS ORDERED:

1. That the applicant and respondent, forthwith, do all acts and things and sign any necessary document to cause the former matrimonial home known as and situated at B Street, Suburb C in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the real property”) to be forthwith sold altogether out of court (‘the sale”) and upon completion of the sale, the proceeds of the sale be applied:

   (i)First to pay all costs, commissions and expenses of the sale;

   (ii)Secondly to discharge the mortgage loan due to National Australia Bank (registered mortgage number …), being in the amount of approximately $300,000, (“the mortgage”) and any other encumbrance affecting the real property;

   (iii)Thirdly, the balance then remaining be divided in the proportions of:

   A.55 per cent thereof to the applicant (less any adjustment required pursuant to paragraph 3); and

   B.45 per cent thereof to the respondent (plus any adjustment required pursuant to paragraph 3).

2. That pending the completion of the sale:

   (i)the respondent have the sole right to occupy the real property;

   (ii)the applicant make such payments on account of the mortgage as are required to ensure and keep the mortgage at a balance of no more than $300,000.

   (iii)the parties hold their respective interests in the real property upon trust pursuant to these orders; and

   (iv)neither party encumber the real property without the consent in writing of the other party.

3. Any expenses as may be agreed by the applicant and respondent which are incurred in the preparation of the real property for sale be reimbursed to either the applicant or the respondent (whoever incurred the expense) from the sale proceeds on the basis that the applicant is responsible for 55 per cent and the respondent is responsible for 45 per cent of any such expenses.

4. That the conditions of the sale be as agreed between the parties and that there be liberty to apply as to any difficulty with the sale.

5. That the applicant and respondent, forthwith, do all acts and things and sign any necessary document to cause the balance of money held on trust by Lander & Rogers on behalf of the parties, being about $626,068 (about $873,189 less a payment of $125,000 to each party) plus accrued interest and being the remaining proceeds of sale of the applicant’s interest in D Pty Ltd, to be applied:

   (i)firstly, and subject to paragraph 9 of these orders, to set aside in a joint signatory interest bearing account in the name of the parties requiring joint signatures for any transactions, the sum of $351,205 (“the tax amount set aside”), such sum to be applied to the income tax payable by the applicant on account of the sale of E Street, Suburb F (”the E Street Units”), and estimated to be about $59,417, and on account of the sale of his interest in the business and group known as D Pty Ltd and/or D Pty Ltd group (“D Pty Ltd”), and estimated to be about $291,788, when such income tax is payable; and

   (ii)subject to paragraph 6 of these orders the balance to be divided (“the D Pty Ltd money division”) in the proportions:

   A.55 per cent thereof to the applicant (“the applicant’s part of the D Pty Ltd money”); and

   B.45 per cent thereof to the respondent (“the respondent’s part of the D Pty Ltd money”).

6. That contemporaneously with the D Pty Ltd money division described herein, the applicant pay to the respondent the sum of $38,657 from the applicant’s part of the D Pty Ltd money.

7. That subject to paragraph 9 of these orders in the event the income tax payable by the applicant on account of the sale of the E Street Units and on account of the sale of his interest in D Pty Ltd is less than the tax amount set aside together with any interest earned thereon, then the parties  forthwith do all acts and things and sign any necessary document to cause the balance of those funds to be divided in the proportions of:

   (i)55 per cent thereof to the applicant; and

   (ii)45 per cent thereof to the respondent.

8. That subject to paragraph 9 of these orders in the event the income tax payable by the applicant on account of the sale of the E Street Units and on account of the sale of his interest in D Pty Ltd is more than the tax amount set aside as referred to in these orders, together with any interest earned thereon, then the respondent shall pay to the applicant 45 per cent of the difference between the income tax payable by the applicant on account of the sale of the E Street Units and on account of the sale of his interest in D Pty Ltd and the tax amount set aside within 14 days of the applicant’s written notice to the respondent of such event.

9. That:

   (i)within 90 days of the end of the relevant financial year the applicant do all acts and things and sign all necessary documents to make and file a tax return of income including the income received on account of the sale of the E Street Units and on account of the sale of his interest in D Pty Ltd; and

   (ii)within 14 days of receiving the relevant taxation assessment, the applicant provide to the respondent a copy of his income tax return, the said assessment, evidence of payment of the assessment and a copy of his accountants calculation of the income tax paid by the applicant on account of the sale of the E Street Units and on account of the sale of his interest in D Pty Ltd and any other documents reasonably required to ascertain the actual income tax payable by the applicant on account of the sale of the E Street Units and on account of the sale of his interest in D Pty Ltd; and

   (iii)that there be liberty to apply as to any difficulty with the calculation or payment of the income tax payable by the applicant on account of the sale of the E Street Units and on account of the sale of his interest in D Pty Ltd.

10. That within 14 days of the necessary documents being delivered to his solicitor, the applicant do all such acts and things and sign all such documents as may be required to transfer to the respondent at the expense of the respondent all of his right, title and interest in the Japanese motor car.

11. That paragraphs 12 to 16 of these Orders are binding on the CBUS Superannuation Fund (“the Fund”).

12. The base amount of $83,722 be allocated to the respondent out of the interest of the applicant in the Fund.

13. Pursuant to s90MT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment becomes payable in respect of the superannuation interest of the applicant, Mr Neales, in the Fund, the respondent shall be entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2000 (Cth) (“the Regulations”), using the base amount and there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.

14. That paragraph 12 has effect from the operative time.

15. The operative time for the purposes of paragraph 14 is four (4) business days after the date of service of these Orders upon the Trustee of the Fund.

16. That until the happening of any of the following:

    (i)The superannuation split to the respondent pursuant to these Orders be rolled over into a separate account in the name of the respondent in the Fund; or

    (ii)The transfer or roll-over of the payment split into another superannuation fund nominated by the respondent;

    the applicant be and is hereby restrained by himself his servants or agents from executing a death benefit nomination in favour of any person or doing any other act which would render any part of his interest in the Fund a “non-splittable payment” within the meaning of reg 12 or 13 of the Regulations.

17. That unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:

    (i)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possession, and like chattels in the real property being deemed to be in the possession of the respondent) (save that the applicant shall be responsible for removing the balance of the items in the garage at the real property on or before the settlement date of the sale of the real property or otherwise reimburse the respondent the total cost of removing the items from the garage in accordance with paragraph 3).

    (ii)Monies standing to the credit of the parties in any join bank account are to become the property of the applicant.

    (iii)Insurance policies remain the sole property of the owner named therein.

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

    (v)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

18. That all extant applications as to property and maintenance are otherwise dismissed.

19. That all property & maintenance issues be removed from the pending cases list.

20. That the minutes of consent orders remain on the court file.

21. That the solicitor for the applicant provide a clean copy of these orders within 7 days and transmit such copy by email to the Associate to Johns J.

THE COURT NOTES:

A.That pursuant to s81 of the Family Law Act 1975 the parties intend these orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

B.Contemporaneously with the making of these orders the parties have entered into a Financial Agreement as to maintenance and a Child Support Agreement.

BY CONSENT IT IS ORDERED:

1. That the mother and father have equal shared parental responsibility for the children:

   1.1G born … 2004; and

   1.2H born … 2009

   together referred to as "the children".

2. That the children live with the father as follows:

   2.1During school term:

   2.1.1each Tuesday from 3.30pm to 6.30pm; and

   2.1.2until settlement of the sale of B Street, Suburb C, each alternate weekend from 10.30am on Saturday to 5.30pm on Sunday; then

   2.1.3after settlement of the sale of B Street, Suburb C, each alternate weekend from 5.30pm on Friday to 5.30pm on Sunday.

   2.2During the first, second and third term school holidays:

   2.2.1for the first half of each school holiday period in 2014 and each alternate year thereafter, commencing at 10.30am on the day following the last day of school term and concluding at 5.30pm on the mid-point of such holidays; and

   2.2.2for the second half of each school holiday period in 2013 and each alternate year thereafter, commencing at 10.30am on the mid-point of such holidays and concluding at 5.30pm on the last day of such holidays.

   2.3During the long summer holidays in 2013/2014:

   2.3.1from 5.30pm on 25 December 2013 until 5.30pm on 2 January 2014 and for the same period each alternate year thereafter; and

   2.3.2from 5.30pm on 6 January 2014 until 5.30pm on 13 January 2014.

   2.4During the long summer holidays in 2014/2015:

   2.4.1from 10.30am on 24 December 2014 until 5.30pm on 25 December 2014 and for the same period each alternate year thereafter; and

   2.4.2from 5.30pm on 26 December 2014 to 5.30pm on 9 January 2015 and for the same period each alternate year thereafter.

   2.5During the long summer holidays in 2015/2016:

   2.5.1from 5.30pm on 25 December 2015 to 5.30pm on 8 January 2016 and for the same period each alternate year thereafter.

   2.6At such further and/or other times as mutually agreed.

2A.That the children live with the respondent mother at all other times.

1. The applicant provide the respondent with at least:

   3.124 hours' notice of any inability to spend time with the children for the periods specified in paragraph 2.1.

   3.230 days' notice of any inability to spend time with the children for the period specified in paragraphs 2.2, 2.3, 2.4 and 2.5.

2. That notwithstanding any orders to the contrary, the children shall spend from 10.30am until 7.00pm on Mother's Day with the respondent mother and from 10.30am until 7.00pm on Father's Day with the applicant father in each year.

3. That, during school terms, the respondent facilitate the children's telephone and/or skype communication with the applicant at such times as may be agreed, but in default on each Monday and Thursday when the children are not living with the applicant father between the hours of 5.00pm and 6.00pm and the telephone communication shall be by way of mobile telephone for up to 20 minutes.

4. That during school term holidays and the long summer holidays, the parties each facilitate telephone and/or skype communication between the children and the other parent no less than 3 times per week.

5. That for the purposes of changeovers pursuant to these orders and unless otherwise agreed:

   7.1during school term on Tuesdays in 2013, the applicant will collect G from school/after school care by no later than 4:30pm, send a text message to the respondent to advise that he is on route to collect H, and will collect H from the respondent's residence by no later than 4:45pm and return them to the respondent's residence at the conclusion of time (subject to the applicant organising and being solely responsible for payment of any after school care arrangements required by him);

   7.2during school term on Tuesdays in 2014 and thereafter the applicant will collect both G and H from school/after school care/kindergarten by no later than 4.45pm and return them to the respondent's residence at the conclusion of time (subject to the applicant organising and being solely responsible for payment of any after school care arrangements required by him);

   7.3at the commencement of time for all other changeovers, the applicant collect the children from the respondent's residence and that the respondent collect the children from the applicant's residence at its conclusion;

   7.4in the event that the applicant is unable to personally attend changeover, the following persons be expressly permitted to do so on his behalf:

   7.4.1Ms I (the applicant's mother);

   7.4.2Ms J (the applicant's partner);

   7.4.3Ms K (the applicant's sister).

   7.5In the event that the respondent is unable to personally attend changeover the following persons be expressly permitted to do so on her behalf:

   7.5.1Mr L Gordon (the respondent's father);

   7.5.2Ms M Gordon (the respondent's mother).

6. That each of the parties do all acts and things and sign all such documents necessary to enrol H at Suburb C Kindergarten or such other kindergarten as agreed between the parties at the commencement of 2014.

7. That subject to the school/kindergarten requirements, each party be at liberty to discuss the child's progress with the school principal and/or with the child's teacher or teachers and the parties authorise the said school/kindergarten and school principal, teacher or teachers:

   9.1inform the applicant and the respondent of any future school/kindergarten functions, events and activities of the children or either of them;

   9.2provide to each party at their expense school/kindergarten reports, photographs and notices in relation to the children or either of them;

   9.3provide an order form for any school/kindergarten photo or photos available for order by parents;

   9.4arrange separate and independent parent/teacher interviews so as to obtain information in relation to the progress of the children or either of them;

   9.5invite all parties to attend any function or event at the school/kindergarten including but not limited to concerts and presentations and any other extra-curricular activities that the children or either of them may be involved in from time to time and that both of the applicant and the respondent shall be free to attend all school/kindergarten sports and other extra-curricular activities of the children.

8. That each of the parties:

   10.1immediately inform the other in the event that either of the children is involved in any serious accident or suffers from any serious illness; and

   10.2forthwith inform the other of any medical practitioner with whom either of the children are scheduled to consult with or has consulted with and authorise the other parent to make all reasonable enquiries of such medical practitioner/s concerning the children's health.

9. That each party inform the other of any change of residential address 7 days prior to any such change and email address and home or mobile telephone details forthwith upon such change.

10. That the applicant and the respondent each be permitted to remove the children from Australia for a holiday subject to providing at least 30 days' notice of any intended holiday (limited in duration to 2 weeks) and providing the other party with all necessary details including the travel itinerary, flight details, accommodation details and contact telephone numbers and subject to the holiday occurring in a period in which the children would live with that party in accordance with these orders.

11. That the applicant and the respondent each do all acts and things and sign all necessary documents to facilitate the issuing of passports for each of the children at the expense of the applicant and with the passports to be held by the respondent and the applicant will immediately return the passports to the respondent at the conclusion of any period in which he has the passports for travel purposes.

12. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Neales & Gordon 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 MELBOURNE

FILE NUMBER: MLC 3683 of 2012

Mr Neales

Applicant

And

MS Gordon

Respondent

REASONS FOR JUDGMENT

1. Before me today, I have solicitors for both parties, presenting two sets of minutes of orders in relation to this matter.  The parenting orders deal with the future arrangements for the care of the parties’ two children, G, who is aged nine years, and H, who is four years of age.  The proposed consent orders arise and have been negotiated following the parties attendance on Ms N, psychologist, and also Ms O.  I am told by the solicitors for the parties that the parties have attended upon each of those experts to assist them in the formulation of arrangements for the future parenting of the two children.

2. Essentially, those arrangements provide that the children will live with the mother and have specified periods where they live with the father, ultimately, on an alternate weekend basis from Friday afternoon to Sunday afternoon, and there is provision also for time with the father each Tuesday afternoon, essentially for a period of what looks to be after school or Kindergarten until 6.30 pm.  There are also provisions for block periods of time for the children with the father during school holidays, both term holidays and the long summer holiday period.  There are arrangements with respect to Christmas holidays, Mother’s day, Father’s day and the like.

1. There is also enormous detail in terms of provision of information flowing between the parties with respect to the children’s schooling and kindergarten arrangements, as well as provision of information in relation to medical events which may arise from time-to-time.  It is evident from the detail in the orders that much thought and consideration has been applied by both of these parties as to what is in the best interests of the children.  Having heard submissions from solicitors for the parties, I am satisfied that these orders do represent appropriate arrangements that are going to advance the children’s interests. 

2. I am satisfied that the orders are the in the best interests of these children and accordingly, I will make orders in the terms of the minute of order, noting the amendment that I have made at paragraph 2A of those minutes;  that is an amendment that the children live with the mother at all other times.  I should add that that amendment has been made following me standing the matter down to enable each of the solicitors to confirm their client’s instructions in relation to that amendment.  The omission of that order was merely an oversight.  Having regard to the detail contained within the orders, it is understandable how such an oversight can occur.

3. What I will do is mark that minute with the letter A;  it will remain on the court file and I will ask the solicitor for the applicant to engross and file that order at Court within seven days. 

4. Turning then to the financial matters, I have been provided with a detailed summary by the solicitors for the parties as to how the proposed orders have been arrived.  I have been informed that the parties have attended a mediation with Mr Spicer of counsel and have had the assistance of counsel at that mediation, and that these orders arise and are the product of that mediation process.

5. In essence, the proposed orders provide for a 55-45 split in favour of the husband.  It was submitted to me – and I am informed that these parties had an eight year relationship – that the pool available to the parties at the conclusion of their relationship is in the order of $1.255 million net.  I have been informed that in terms of contributions, there is an adjustment to be made in favour of the husband to reflect the fact that at the commencement of the parties’ relationship, he held properties.  In addition, he had a collection of motor vehicles and a superannuation interest.  All of those assets have been valued and in terms of the current asset pool, their value represents approximately 45 per cent of the pool of assets available today.

6. Accordingly, I am informed that there is a contribution adjustment in favour of the husband to reflect those initial contributions.  In terms of a consideration of the factors pursuant to section 75(2), I am informed that there has been a five per cent adjustment in favour of the wife to reflect the fact that she has the predominant care of the parties’ two young children and further, that there is an income disparity as between the parties.  I am informed that the husband is employed and has an income of approximately $140,000 per annum; the wife is currently not working, although she has a qualification.

7. It is anticipated that upon the youngest child’s commencement at school, the wife is likely to return to some employment.  Having regard to the background that I have just described, I consider that it is appropriate and it would be just and equitable to make orders in this matter.  The adjustment that is proposed, that is a 55-45 split in favour of the husband, appropriately takes into account both the contribution aspects in this matter and also the section 75(2) factors.  I consider the proposed orders to be just and equitable, and I propose to make orders in the terms of the minute that has been signed by the parties and presented to court this day.

8. I will mark these minutes with the letter B; they will remain on the court file, and I direct that they be engrossed by the solicitor for the applicant.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on Friday, 22 November 2013.

Associate:     

Date:  22 November 2013