Oakley and Salmon (No. 2)

[2008] FamCA 502

FAMILY COURT OF AUSTRALIA

OAKLEY & SALMON (NO. 2) [2008] FamCA 502

FAMILY LAW – PROPERTY – Consent property orders – s79(2) just and equitable

Family Law Act 1975 (Cth)

APPLICANT: Ms Oakley

RESPONDENT:	Mr Salmon
FILE NUMBER	MLF 1331  of  2006
DATE DELIVERED:	23 June 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 23 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T.J. Puckey

SOLICITOR FOR THE APPLICANT: Henaghan McLean

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

Orders

In the matter of Oakley & Salmon: 

1)The previous orders be discharged (including costs reserved) save as set out in paragraph 14 herein.

2)The husband and the wife have equal shared parental responsibility for the children, a daughter, born … December 1995 and a son, born … June, 1999 (“the children”).

3)The children live with the wife

4)That the children spend time with and communicate with the husband as follows:

a)for first half of the first term school holidays in Australia

b)for first half of the second term school holidays in Singapore, Australia and/or other overseas destinations at the election of husband

c)for first half of the third term school holidays in Australia

d)for one half of the long summer holiday period to be spent in Singapore, Australia and/or other overseas destinations at the election of husband with the first half in even numbered years and second half in odd numbered years.

e)for one weekend during each school term by agreement from after school on Friday to the commencement of school on Monday or from after school Thursday until Sunday afternoon or from Saturday morning until the start of school Tuesday with the husband to nominate the particular weekend to the Wife in writing at least one month in advance.

f)by telephone on the children’s birthdays and on the husband’s birthday and Father’s Day and on Mondays and Wednesdays between 7 p.m and 7.30 p.m. and at any other reasonable times.

g)by letters, cards, email and photographs including by web cam facilities if provided by the husband and at his expensive (if any)

5)That the husband be permitted to travel overseas with the children during periods when they spend time with him pursuant to sub-paragraph 4(b) and 4(d) of these orders, subject to the husband providing to the wife a written itinerary as to the children’s travel and a contact telephone number at least a month in advance of such travel.

6)For the purposes of the children spending time with the husband in Singapore and/or other overseas destinations the husband shall personally collect and accompany the children from Melbourne at the start of his time and personally return the children to Melbourne at the conclusion of his time.  Such arrangement for collection and delivery shall continue until the parties’ daughter is 14 years of age and thereafter the husband shall arrange for the children to travel to and return from Singapore unaccompanied unless the parents agree the children are not ready to do so.

7)For the purposes of the children spending time with the husband in Singapore and/or other overseas destinations the wife shall make the children’s passports available to the husband at the start of the time to facilitate the children’s travel overseas and the husband shall return the children’s passports to the wife at the conclusion of his time with the children .

8)That otherwise each parent be and is hereby restrained from obtaining passports for either child or  relocating the country of residence of the children without first obtaining the written consent of  the other  parent or an order of this court.

9) The wife to authorise the children’s school for the school to provide to the husband copies of the children’s school reports, newsletters and photos independently of the wife.

10)Both parents shall notify the other of any medical treatment and/or medical emergencies involving the children as soon as practicable.

11)That the husband shall notify the wife and shall keep her notified of the contact telephone number of the children during the entire period of his time with the children and ensure that the children are able to contact/ communicate with the wife at any time they wish.

12)Should the wife travel overseas and/or Interstate she shall notify the husband and shall keep him notified of the children’s contact number during the entire   period they are aware from home.

12A)Each parent keep the other advised at all times of their mobile and landline        telephone numbers and address and email addresses. 

12B)Pursuant to Section 65 DA(2) and section 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.

Property orders

13)The husband pay to the wife the sum of $20,000 by direct deposit into her NAB account  number …42 within 30 days of these orders.

14)Paragraph  I of the orders of this court made 17^th October, 2006  be discharged with effect  from 1^st July, 2008  (the payment for June 2008 is to be paid direct deposit into the wife’s NAB account number …34  within 7 days.

15)Pursuant to s77A of the Family Law Act the sum of $20,000 of the money and property to be retained by the wife pursuant to these orders is attributable to maintenance for the wife.

16)The husband sign all necessary documents with 14 days of these orders to effect transfer to the wife of  his right title and interest in the property at H in Victoria (“the real property”)

17)The wife shall refinance the existing mortgages over the real property within 12 months of the date of these orders and until such refinance takes place the wife shall meet all mortgage repayments and other outgoings of the property as and when these fall due and she shall keep the husband indemnified towards any liabilities with respect to the said mortgage and outgoings.

18)Pending the refinance in paragraph 17 the wife be and is hereby restrained from

a)   selling, alienating, incumbering or otherwise dealing with the real property: or

b)     increasing the amount of debt presently secured by and incumbering the real property

without first obtaining the written consent of the husband or an order of this court.

19)The wife indemnity the husband absolutely in respect of all payments and liability in respect of the loan agreement with her parents dated 21^st June, 2005 and any other liability of the parties to the wife’s parents whatsoever.

20)That paragraphs 21-25 (inclusive) of these orders are binding on the Trustee of the Superannuation Plan:  BT Lifetime – Personal Super- Investor  No. … (“the Fund”) 

21)That the base amount representing 100% of the husband’s interest in the Fund be allocated to the wife.

22)That pursuant to section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the Husband’s interest in the Fund, the wife shall be entitled to be paid the specified percentage, being 100%, calculated in accordance with the Pt6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement that the husband would have had in Fund but for these orders.

23)That order 22 has effect from the operative time.

24)That the operative time for the purposes of Order 23 of these Orders is four (4) business days after the date of service of these orders upon the Trustee of the fund.

25)That until such time as the Superannuation split to the wife pursuant to these orders can be rolled over onto a separate account to the wife:

25.1the husband shall provide to the wife no less than 28 days notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the Fund.

25.2The husband shall direct and authorize the Trustee of the Fund to communicate with the wife and/or any person authorized by her in writing:-

25.2.1to answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the Fund, and

25.2.2to provide to the wife and/or her authorized representative a copy of any notice of any application or request by the Husband which seeks release of the entitlements in the Fund in so far as that release may effect the wife’s entitlement in the Fund pursuant to these Orders.

26That the husband by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to these orders.

27)In the event that the Superannuation split to the wife pursuant to these orders can be rolled over into a separate account to the wife each of the parties hereto shall each do all such acts and things to execute all such documents as may be necessary to facilitate and to implement that rollover.

28)All extant applications (interim and final) are otherwise dismissed and the proceedings are removed  from the docket of His Honour Mr Justice Young and  the list awaiting hearing.

29)All subpoenaed documents are to be returned by the subpoenas clerk, Family Court, Melbourne Registry, to the person or organisation who sent them to the court.

30)The report of  Mr A is accepted into evidence.

31)Certify for Counsel appearing for each of the parties.

NOTATION:

A.The parties intend that these orders shall so far as is practicable finally  determine the financial and other relationships between them and avoid all further proceedings between them

B.Notwithstanding paragraph 4 (b) and (c) it is agreed that the children will spend time overseas with the husband in the Term 3 2008 school holidays instead of Term 2 2008 and for the second half of the holiday period rather then the first.

C.For the purposes of the children’s religious observance the wife provide as much notice as is possible of the dates of events and requirements, in the case of Ramadan at least 2 years in advance.

D.The 20^th June, 2008 letter from B T Funds Management is marked exhibit “W1”

E.     The court has declared these orders to be just and equitable pursuant to S79(2).

IT IS NOTED that publication of this judgment under the pseudonym Oakley & Salmon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1331 of 2006

MS OAKLEY

Applicant

And

MR SALMON

Respondent

EX TEMPORE REASONS FOR JUDGMENT 

1.The matter of Oakley and Salmon was before me in the defended list of cases and scheduled for a three-day hearing.  The husband appeared in person and the wife was represented by Mr Puckey of counsel.  There were discussions out of court and the matter resolved on all children, parenting, property and financial issues, including all reserved cost issues.  I was asked to make minutes of consent orders.  As to the children's orders, I have the benefit of a report from a family consultant, Mr A; otherwise I had extensive affidavit material from the parties.  This case does present an issue that is somewhat complex.  The father has relocated to Singapore, the mother remains in Melbourne with the two children who are practising Muslims. 

2.The father was converted to but has now left that faith.  The mother is a Malay national and she is the child of a significant family in Malaysia with very extensive family ties.  Her evidence to the court is that she and the children will live permanently in Melbourne and make their life in Australia.  She has obtained a professional degree in addition to her trade degree, and is well qualified now to obtain employment.  The primary issues between the parties as to children largely revolve around their care and upbringing religion and the time that the father will spend with them out of Australia.  The parties have agreed that they share equal parental responsibility and that is appropriate. 

3.I have read the family consultant's report on the children, particularly the parties’ daughter, and am therefore aware of the age-related issues with which the daughter has to deal.  This case presents a mix of culture, nationality and religion, blended with a considerable distance as between parties.  On balance, I do accept that the husband has consented to proper orders for the children.  They are balanced, though they do involve very considerable travel by him at his expense over the next two years.  I have emphasised to the parties that they must share a balance of commonsense and plan around future religious and other issues.

4.Overwhelmingly, however, what is fundamental is that the children have the benefit and the opportunity of knowing their father and spending time with him. That time should be meaningful and they should be exposed to his life, subject to all proper restraints and decorum.  I accept that both of these parties love their children and will promote their welfare and, on that basis, I will make the children's orders.  As to property, there are many allegations in this case of income, of hidden assets, or of considerable extended family wealth.  What was somewhat lacking was real proof one way or the other. 

5.Nevertheless, I am aware of the acquisition of assets in Australia, the very considerable debt that attaches to the home, the rising interest rates and the cost of servicing that debt and the necessity for the children to have a roof over their heads. Ultimately, I have pursued with the husband his understanding of the settlement. In general terms, the wife retains all equity in Australian property and takes over the husband's BT superannuation. The benefit to the husband is that spousal maintenance forever ceases, subject to the payment of $20,000, which is paid pursuant to the provisions of section 77A of the Family Law Act (1975). The husband therefore protects his income but much of that will be spent on airfares to and from Australia and limited support of the children when they are with him.

6.The contrast is that the wife has day-to-day responsibility for the education, the support and the upbringing of the children.  That is certainly a considerable expenditure and probably becomes more and more expensive as each month goes by.  Nevertheless, on the basis of the assets, the wife has certainly obtained a settlement that is at the higher range; perhaps even above the range that she could have expected before the court.  I have said to the husband that, on one assessment of the evidence the orders are somewhat generous.  The bottom line is he understands the orders, he wants finality, he knows his children are to benefit by the home and the lifestyle they will have and he wants to maintain good and workable relationships with the wife and close and loving relationships with the children.

7.My obligation is to make the orders only if they are just and equitable.  That is prescribed in section 79(2) of the Act.  In determining the outcome of this case, I have very specific regard to the husband's financial knowledge;  the extent of his affidavit; the extent of his knowledge of the wife's financial circumstances and perhaps those of the extended family; and finally, to give some support to the outcome that he has negotiated.  I am therefore satisfied that the husband knows the outcome and has supported the outcome in these orders.  If it be generous to the wife on a financial basis, that is his choice.  I am clearly satisfied that there is no mistake or duress on the husband.  I have raised these matters in open court with him and he has confirmed that these orders are that which he seeks, and therefore deems appropriate by way of final adjustment.

8.I have emphasised the finality of these orders; simply put, there is no second chance.  Once these orders are made, they are final and these proceedings are out of this court forever.  For all of those reasons, on the basis of the disclosed financial information and acting on that which the parties seek, I conclude that these are pragmatic orders that bring finality.  I accept the husband wants finality; he will therefore have his income and a fresh financial start in life.  On all of the facts of this case and my careful reading of all of the material I find that the outcome is just and equitable. It will likely be that the children will benefit from these orders, though clearly the financial obligations of the mortgage - if indeed the wife is to pay them off herself - are considerable.  However that is organised within the family in the future, though, is a matter for the wife's family and not for the husband, nor for this court.  For those very brief reasons, which I will have transcribed and placed upon the court file, I will make the final property orders as negotiated. 

9.I declare, pursuant to section 79(2), the financial orders to be just and equitable.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Associate: 

Date:  7 July 2008