Norton and Norton

[2007] FamCA 595

FAMILY COURT OF AUSTRALIA

NORTON & NORTON [2007] FamCA 595

FAMILY LAW - PROPERTY SETTLEMENT - Final property orders sought by consent
FAMILY LAW - CHILDREN - Final parenting orders sought by consent – One child not the biological child of the husband – Recorded that biological father was served although no proof of service available

Family Law Act 1975

APPLICANT: Mrs Norton

RESPONDENT: Mr Norton

INDEPENDENT CHILDREN’S LAWYER: Septimus Jones & Lee

FILE NUMBER: MLF 1798 of 2004

DATE DELIVERED: 23 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A.E. Carter

SOLICITOR FOR THE APPLICANT: Campagna Gray & Mallinder

COUNSEL FOR THE RESPONDENT: Mr R.P. Hutchins

SOLICITOR FOR THE RESPONDENT: McSwineys

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr D.W. Meehan

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Septimus Jones & Lee

Orders

1. That there be final orders in terms of the Minutes of Consent Orders signed by the parties and dated 23 May 2007 (“the Minute”).

2. That all extant proceedings be removed from the pending list of cases maintained by the Court.

3. That any documents produced pursuant to subpoenae be returned by the Registry to the persons producing same.

4. That my reasons for decision today be transcribed and when transcribed a copy be sent to each of the parties and the original be placed on the court file.

IT IS DIRECTED:

1. That prior to ceasing to be involved in this matter and as soon as practicable the independent children’s lawyer cause a sealed copy of these Orders to be served on the following persons by pre paid post:-

   (a)

   The biological father of the child a son born … March 1998, who is

   
   

   Mr J at an address to be provided by the applicant wife to the independent children’s lawyer;

   (b)The proper officer of the school attended by the son and to be attended by the daughter in 2008 pointing out the provisions of paragraphs 11 and 12 of the minute of Orders and the fact that the effect of these orders is that the wife and the husband have equivalent responsibility for both children.

2. That the Minute be placed upon the Court file and marked “Exhibit A”.

3. That the solicitors for the applicant wife do engross the Minute and provide a clean, duly certified copy of the same (“the Copy”) to the Registry of this Court within 1 day.

4. That upon delivery of the Copy to the Court, the within orders be extracted and the Copy be attached thereto.

Minute of Orders sought by consent

1. The parents have equal shared parental responsibility for the children, a son born … March, 1998 and daughter born … July, 2002.

2. The children live with the wife.

3. The children spend time with and communicate with the husband as follows:

   (3.1)For a period of three months following the making of these Orders, each alternate Saturday between 9am and 5pm commencing 2 June, 2007, changeovers to be effected at W McDonalds, or as is otherwise agreed;

   (3.2)For a period of three months following the period referred to in paragraph 3.1 herein, each alternate weekend from 9am Saturday to 5pm Sunday commencing 8 September, 2007, changeovers to be effected at W McDonalds, or as is otherwise agreed;

   (3.3)Thereafter, each alternate weekend from 3.30pm Friday to 5pm Sunday commencing 14 December, 2007. The husband to collect the children from school/day care at the commencement of his time, and to return the children to W McDonalds at the conclusion of his time, or as is otherwise agreed;

   (3.4)From 2008 and each year thereafter, for the whole of the first term (April) and second term (June/July) school holidays, provided the husband is able to obtain leave from his employment for the whole of those periods. The husband to collect the children from and return the children to school at the commencement and conclusion of each holiday period;

   (3.5)For two weeks during the long summer holiday period at times as are agreed and failing agreement, from 10am 2 January, to 5pm 16 January, changeovers to be effected at W McDonalds, or as is otherwise agreed.

   (3.6)From 5pm Christmas Eve to 5pm Christmas Day in 2007 and each alternate year thereafter changeovers to be effected at W McDonalds, or as is otherwise agreed;

   (3.7)From 5pm Christmas Day to 5pm Boxing Day in 2008 and each alternate year thereafter changeovers to be effected at W McDonalds, or as is otherwise agreed;

   (3.8)On Father’s Day from 9am to 5pm, changeovers to be effected at W McDonalds, or as is otherwise agreed.

4. Prior to the time spent by the children with the husband provided in paragraph 3 herein the husband repair or cause to be repaired the verandah floors at his mother’s residence at G (“the paternal grandmother’s residence”) to a reasonable standard.

5. For the purposes of changeovers on a Friday evening or at the commencement of school holiday periods, if the husband is unable to collect the children or either of them at the nominated time and the children are placed into after school care, the husband shall be responsible for the costs of that care.

6. Changeovers can be effected by either parent or their nominee.

7. The weekend periods as set out in paragraphs 3.1, 3.2 and 3.3 herein be suspended during all school holiday periods and resume at the conclusion of the holiday periods as if there had been no intervening holiday period.

8. In the event Mother’s Day falls on a weekend the children are with the husband, his time shall cease at 9am Mother’s Day changeovers to be effected at W McDonalds, or as is otherwise agreed.

9. The husband and wife provide to the other at all times their respective residential and postal addresses and their electronic contact details including contact telephone numbers, both mobile, home landline and work landline and email addresses and inform the other of any changes of these details within two days of such change.

10. The husband and wife each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by the children.

11. The wife authorise the principal of each school attended by the children from time to time to be sent to the husband:

    (11.1)A photocopy of each school report concerning each child;

    (11.2)A photocopy of all school notices concerning each child;

    (11.3)An order form for each school photograph of each child.

12. The husband be at liberty to attend or visit the school or schools attended by the children from time to time for events, activities or functions routinely attended by parents.

13. The husband and wife be hereby restrained from:

    (13.1) Denigrating the other, the other parent’s partner or the other parent’s family to or in the presence or hearing of the children or permitting any person in their presence to do so.

    (13.2) Discussing allegations in these proceedings to or in the presence or hearing of the children, or permitting any person in their presence to do so.

    (13.3) Consuming alcohol to excess whilst the children are in their care, or permitting any person in their presence to do so.

    (13.4) Smoking in the same room as the children, or in a vehicle with the children, or permitting any person in their presence to do so.

14. Both parents forthwith enrol in and complete a Post Separation Parenting Course as nominated by the Independent Children’s Lawyer.

15. The Order for the appointment of the Independent Children’s Lawyer be discharged within 21 days.

PROPERTY

1. Within 30 days of the making of these Orders, the husband pay the sum of $62,000 to L Home Loans (“the payment”) as partial discharge of the mortgage affecting the property known as and situate at H (“the former matrimonial home”).

2. Contemporaneously with the payment:

   (17.1)The husband transfer to the wife at her expense all of his right, title and interest in the property known as and situate at H (“the former matrimonial home”);

   (17.2)The wife refinance the mortgage affecting the matrimonial home into her sole name, and otherwise indemnify the husband with respect to the mortgage affecting the said property, and all rates, outgoings and the like with respect to the said property.

3. That the wife retain for her sole use and benefit her Mitsubishi Lancer motor vehicle registration number … .

4. The wife indemnify and forthwith keep indemnified the husband with respect to:

   (19.1)Monies owing to her parents;

   (19.2)The Centrelink debt;

   (19.3)Monies owing to E Finance and

   (19.4)Monies owing to I Finance.

5. That the husband retain, for his sole use and benefit:-

   (20.1)His interest in the property known as and situate at D (“the farm property”), and all livestock, plant and equipment thereon;

   (20.2)His Holden Rodeo motor vehicle registration number … ;

   (20.3)His shares with:

   (20.3.1)X;

   (20.3.2) A;

   (20.3.3) U; and

   (20.3.4)His interest in the F Company.

6. The husband indemnify and forthwith keep indemnified the wife with respect to the monies owing to:

   (21.1)his mother;

   (21.2)C Finance;

   (21.3)T Mastercard;

   (21.4)O and K;

   (21.5)X Credit Union.

7. Within 30 days, the husband refinance the mortgage affecting the farm property into his sole name, and otherwise indemnify the wife with respect to the mortgage, all rates, outgoings and the like with respect to the said property.

8. In the event the whole of the payment has not been made by the due date, within 7 days, the husband do all such acts and things and sign all such documents as may be necessary to transfer to the wife all of his interest in farm property on trust to her for sale, and the proceeds of the sale applied as follows:-

   (23.1)Firstly, to pay all costs, commissions and expenses of the trust transfer and sale;

   (23.2)Secondly, to discharge the husband’s share of the mortgage and any other encumbrances affecting the farm property;

   (23.3)Thirdly, so much of the payment as is then outstanding together with 12% interest thereon to the L Home Loans;

   (23.4)The balance to the husband.

9. That pending the trust transfer and sale:-

   (24.1)the husband have the sole right to occupy the farm property and that during such right of occupation the husband pay all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of or with respect to the farm property of whatsoever nature and kind as they fall due;

   (24.2)the parties hold their respective interests in the farm property upon trust pursuant to these orders;

   (24.3)neither party encumber the farm property without the consent in writing of the other party.

10. That liberty be reserved to either party to apply with respect to the terms and conditions of and execution of the sale.

11. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

    (26.1)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date.  The furniture, personal possessions and like chattels in the matrimonial home are considered to be in the possession of the wife.

    (26.2)money standing to the credit of the parties in any joint bank account is to become the property of the wife.

    (26.3)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.

    (26.4)all insurance policies to become the sole property of the beneficiary named therein.

    (26.5)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;

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

12. All extant applications be otherwise dismissed.

13. That pursuant to Section 65DA(2) and 62B of the Family Law Act 1975 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 annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

AND IT IS NOTED: That pursuant to Section 81 of the Family Law Act the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Norton & Norton.  

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1798 of 2007

Mrs Norton

Applicant

And

Mr Norton

Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

1. I am asked to make final orders which dispose of the proceedings in relation to a son, who is 9, and a daughter, who is 4, as well as orders effecting a final alteration of property interests between the wife and the husband. 

2. The parties have had the benefit of representation today.  Mr Hutchins of counsel appears for the husband, Ms Carter of counsel appears for the wife and Mr Meehan of counsel appears on behalf of the independent children's lawyer.

3. I am satisfied that the arrangements for the children are proper.  I do note, however, that the son is not the biological child of the husband.  Although it appears that the son has at all times been a member of the husband's household whilst the parties lived together. 

4. I am informed that the boy's father is Mr J.  He lives in Queensland.  He pays $50 per week child support. 

5. Pursuant to paragraph 2 of the orders made by Brown J on 18 August 2006 Mr J was served with the pending proceedings.  Once served, Mr J had notice that the husband, was seeking orders for parental responsibility of the boy.  There is no proof that that service has been effected, but I make these orders on the assurance of counsel for the wife that she is instructed that the orders were duly served by post.  

6. The orders which I am asked to make today provide for regular time to be spent between the son, daughter and the husband.  I am assured that the times that the orders provide for the son to spend with the husband do not conflict with the times he regularly spends with his own father, Mr J, which is during the September school holidays and for one week at Christmas time. 

7. There is no appearance by or on behalf of Mr J today.  He is not a party to the proceedings.  Accordingly, it is appropriate that there be some record of what the court was advised of today and the basis upon which the orders have been made. 

8. Property matters are straightforward.  I rely on what I have been informed of by counsel.  I am satisfied that the settlement is just and equitable and proper. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  18 June 2007