PASKIN & LAURENCE
[2018] FamCA 554
•25 July 2018
FAMILY COURT OF AUSTRALIA
PASKIN & LAURENCE [2018] FamCA 554
FAMILY LAW – CHILDREN – Where there is one child aged six years – Where the father seeks an increase in his time with the child including overnight time – Where orders were previously made for overnight time to commence on a specified date – Where the mother does not dispute these orders but requests a more gradual approach to increasing overnight time – Where the father has been diagnosed with Asperger’s Disorder and has perpetrated family violence in the past – Where the father is receiving ongoing treatment and has shown insight into his condition – Where the expert considers that the father’s proposals for time will generally best meet the child’s needs – Where there are benefits to each of the parents having clear weekend time with the child – Where it is ordered for the child to spend alternate weekends and one night during the intervening week with the father.
FAMILY LAW – CHILDREN – Parental Responsibility – Where the father and the Independent Children’s Lawyer seek an order for equal shared parental responsibility and the mother seeks sole parental responsibility – Where the presumption for equal shared parental responsibility does not apply as the father has been responsible for family violence – Where the parents do not have a good relationship and their communication is poor – Where it would be in the child’s best interest for the father to have input into decisions – Where an order is made for the mother to have sole parental responsibility with orders for consultation with the father.
FAMILY LAW – RELOCATION – Where the mother seeks an order that she be able to relocate with the child for one period of up to three years – Where the father opposes this application – Where the expert recommends that the relocation should not take place for at least two years so that the child and the father can develop their relationship – Where the Court will not presume to speculate now about the circumstances of this family in late 2019 and beyond – Where no order allowing relocation is made.
FAMILY LAW – PROPERTY – Where the parties were married for approximately 10 years – Where the main assets of the relationship are moneys in a joint account, superannuation and the father’s share options in a US company – Where neither party sought for their paid legal fees to be added-back – Where the wife brought substantial funds into the marriage and the husband’s share options have increased post separation – Where contributions are assessed as 55 per cent by the father and 45 per cent by the mother – Where the mother has the primary care of the child – Where an adjustment of 7.5 per cent is appropriate in favour of the mother.
FAMILY LAW – PROPERTY – Share options – Where the father has share options in his employer, a US company – Where not all options have vested – Where the fees and tax implications of exercising these options are unknown – Where the father cannot exercise the options if his employment is terminated – Where the options are to be considered in specie – Where orders are made for the vested shares to be exercised when they are in the money and for 50 per cent of the value obtained from these shares to be provided to the wife.
Family Law Act 1975 (Cth) ss 60CC, 61B, 61C, 65D, 65DAC, 65Y, 75, 79, 81, 90MT
Family Law (Superannuation) Regulations 2001 (Cth)
Superannuation Industry (Supervision) Regulations 1994 (Cth)
Champness & Hanson (2009) FLC 93-407
Coghlan & Coghlan (2005) FLC 93-220; [2005] FamCA 429
In the Marriage of Lenehan (1987) FLC 91-814; [1987] FamCA 8
In the Marriage of Norbis (1986) FLC 91-712; [1986] HCA 17
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Zyk (1995) FLC 92-644; [1995] FamCA 135
McCall & Clark (2009) FLC 93-405
Pierce & Pierce (1999) FLC 92-844; [1998] FamCA 74
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Wendland & Wendland (2017) FLC 93-808; [2017] FamCAFC 244
APPLICANT: Mr Paskin
RESPONDENT: Ms Laurence
INDEPENDENT CHILDREN’S LAWYER: Ms Tin
FILE NUMBER: SYC 8145 of 2014
DATE DELIVERED: 25 July 2018
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Loughnan J
HEARING DATE: 25, 26, 27, 28 September 2017; 10 November 2017; 23 November 2017; 16 April 2018, 15 June 2018 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Schonell
SOLICITOR FOR THE APPLICANT: The Norton Group
COUNSEL FOR THE RESPONDENT: Ms Christie
SOLICITOR FOR THE RESPONDENT: Watts McCray (NSW) Pty Ltd
ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tran
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Orders
Parenting
(1)The mother shall have sole parental responsibility for X born on … 2011 (“the child” or “the child”).
(2)Prior to exercising sole parental responsibility, the mother shall consult the father about the decision to be made in the exercise of parental responsibility as follows:
(a)by email/in writing with as much notice and relevant information as is available in respect of the decision to be made; and
(b)upon receipt of that information, the father shall provide a prompt response to facilitate the mother’s consideration of his input; and
(c)both parents shall ensure that all consultation between them in relation to parental responsibility for the child is conducted in good faith, is child focused and is not derogatory of the other parent.
(3)Unless otherwise provided in these Orders the child live with the mother.
(4)The child spend time with the father as follows:
(a)from the commencement of Term 3, 2018, each alternate weekend during school term from after school or 3.00 pm Friday until before school or 9.00 am Monday, and each Tuesday in the intervening week from after school or 3.00 pm until before school or 9.00 am Wednesday.
(b)from and including the school holidays at the end of Term 3, 2018, for half of each NSW School Holiday period as follows:
(i)in holidays commencing in odd numbered years, for the first half of all school holidays; and
(ii)in holidays commencing in even numbered years, for the second half of all school holidays.
(c)on Christmas Day in each even numbered year from 10.00 am until 6.00 pm.
(d)at Easter, provided it does not fall within the school holidays at the end of Term 1:
(i)in odd numbered years, from after school or 3.00 pm on Easter Thursday until 7.00 pm Easter Saturday; and
(ii)in even numbered years, from 7.00 pm Easter Saturday until 7.00 pm Easter Monday.
(e)on the father’s birthday, if the child is not already spending time with the father, from 9.00 am until 7.00 pm.
(f)on Father’s Day, if it is not a weekend the child would otherwise be spending time with the father, from 9.00 am Saturday on the Father’s Day weekend until 7.00 pm Sunday.
(g)on the child’s birthday provided that the father is not already spending time with the child, if it is a school day, from after school until 6.00 pm, and if it is not a school day, from 9.00 am until 3.00 pm.
(h)at any other times as agreed between the parties from time to time.
(5)The father’s time with the child in accordance with Order 4 above, be suspended:
(a)on Christmas Day in each odd numbered year from 10.00 am until 6.00 pm.
(b)at Easter, provided it does not fall within the school holidays at the end of Term 1:
(i)in even years, from after school or 3.00 pm on Easter Thursday until 7.00 pm Easter Saturday;
(ii)in odd years, from 7.00 pm Easter Saturday until 7.00 pm Easter Monday.
(c)on the mother’s birthday, if that day falls on a day when the child would otherwise be spending time with the father, from 9.00 am until 7.00 pm.
(d)on Mother’s Day, if that day falls on a day when the child would otherwise be spending time with the father, from 9.00 am Saturday of the Mother’s Day weekend, until 7.00 pm Sunday,
(e)on the child’s birthday, where the father is already spending time with the child, if it is a school day, from after school until 6.00 pm, and if it is not on a school day, from 9.00 am until 3.00 pm.
(6)That for the purpose of changeover in accordance with Orders 3, 4 and 5 above that does not occur at the child’s school, unless the parties otherwise agree in advance, the father is to collect the child from the mother’s residence at the commencement of his time and the mother is to collect the child from the father’s residence at the conclusion of that time.
(7)For the avoidance of doubt, each of the parents is permitted to attend events held by the child’s school from time to time, including but not limited to, assemblies, sports carnivals and award ceremonies.
Communication
(8)When the child is in the father’s care, the mother shall have electronic communication, including by telephone and/or Skype/video calls with the child at times and on days agreed between the parties, with the mother to provide the father with contact details and both parents are to facilitate that communication.
(9)When the child is in the mother’s care, the father have electronic communication, including by telephone and/or Skype/video calls with the child each Thursday and alternate Sunday when the child is not spending time with the father between 5.00 pm and 5.30 pm, with the father to provide the mother with contact details and both parents are to facilitate that communication.
(10)The father be permitted to communicate with the child’s medical practitioners and to receive reports from those medical practitioners with respect to medical treatment the child may receive from time to time.
Notifications
(11)The mother notify the father of all extracurricular activities the child is enrolled in and, for the avoidance of doubt, each of the parents is permitted to attend those activities from time to time.
(12)Each party shall notify the other as soon as practicable, of any emergency, serious medical incident and/or illness relating to the child while in the party’s care, including providing the other party sufficient details to enable both parties to be consulted and advised with respect to such illness and/or condition and any treatments recommended or provided.
(13)Each party shall notify the other within 48 hours of any change to their address and/or landline and/or mobile number and/or email address.
(14)Each party shall notify the other of the address and telephone number (if there is a landline) of the place/s where the child will be staying during the holiday periods spent away from their residence not later than 24 hours prior to the commencement of any such holiday period.
(15)The following orders be made in relation to travel:
(a)pursuant to subsection 65Y(2) of the Act, each party is only permitted to take the child outside of Australia when the child is living with that parent pursuant to these Orders and provided the travelling parent provides to the other parent not less than 28 days’ notice of their intention to travel overseas, and 14 days prior to the departure overseas provides to the other parent:
(i) a copy of the travel itinerary for the child; and
(ii)particulars of where the child will be staying during that travel, including address and contact telephone numbers.
(b)that the parties shall from time to time give all consents and sign all documents and the mother shall pay any fee to ensure that the child has a current and valid passport.
Father’s Individual Therapy
(16)The father shall continue in therapy with Mr B or his delegate at a frequency recommended by that therapist, at least until the child reaches the age of 13 years.
(17)The father shall give his consent for Mr B to communicate with the mother to confirm the father’s attendance at therapy, without the provision of other details.
(18)The father shall give his consent for Mr B to communicate with the Family Therapist appointed pursuant to Order 19.
Family Therapy
(19)The father shall continue to attend upon Ms C or any other therapist she recommends for the purpose of providing parenting advice and family therapy (“Family Therapist”) both on his own and with the child and at a frequency recommended by Ms C until the child reaches 13 years of age.
(20)Both parties shall follow all reasonable directions of the Family Therapist.
(21)The father shall give his consent for the Family Therapist to communicate with the mother to confirm the father’s attendance for family therapy, without the provision of other details.
(22)The father shall give his consent for the Family Therapist to communicate with Mr B or his delegate, the father’s therapist.
Physical Discipline
(23)Each of the parents is restrained from striking the child.
Mediation
(24)In the event that the parties disagree about issues arising from parental responsibility for the long term and going to the welfare of the child, where practicable, the parties shall:
(a)do all things and acts necessary to seek assistance from a family mediator;
(b)complete forthwith all forms and intake forms necessary to undertake family mediation; and
(c)attend at a time nominated by the family mediator.
(25)Pursuant to s 62B and subsection 65DA(2) of the Act, the particulars of the obligations these parenting 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
(26)Within 28 days of the date of these Orders, each party shall do all things necessary to cause the following:
(a)the moneys held in D Bank - BSB ... account numbers ...39, ...66 and ...02 (“the accounts”), to be divided between the parties in the following shares 51 per cent to the mother and the remaining balance to the father; and
(b)the closure of the accounts.
(27)As between the father and mother, and subject to the above orders, the father and mother shall each respectively retain all interest in and entitlement to:
(a) all personal property now in his/her respective possession or control;
(b)all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively; and
(c)all interests in life insurance policies and, subject to the splitting order made below, the superannuation funds standing in his/her sole name respectively.
E Inc. Options
(28)The Court notes the following definitions for the purpose of the following orders:
(a)The father’s share options or his share options means the Stock Options Grant offered to the father by his employer, E Inc. contained in the offer dated 13 April 2016 (originally 11 September 2013), with vesting start date 29 July 2013, and fully vested date 29 July 2017.
(b)Grant date means the day on which the options are awarded by E Inc. to the father.
(c)Exercise price means the amount payable by the employee to acquire the underlying security, being shares, over which the option is granted.
(d)Vesting date means the date on which the employee can exercise the option and acquire the underlying shares.
(e)Expiry date means the date on which the right to exercise the options and acquire the shares ceases.
(f)Profit means the difference between the exercise price and the market price of the shares and to be ‘in the money’ means the current share market price of the share is higher than the exercise price.
(g)Fair market price means the current value of the shares as determined by the E Inc. Board, or if shares in E Inc. are trading on a public stock exchange (such as NASDAQ), then the price as reported by that stock exchange.
(h)Escrow period means any period during which the shares acquired under the scheme must be held by the employee prior to being transferred.
(29)Within 14 days of the vesting date, the father do all acts and things and sign all documents necessary to exercise his share options (if he has not already done so), including but not limited to executing any form of notice required provided that the shares are in the money.
(30)Within seven days of the father exercising his share options pursuant to Order 29, he provide written notice to the mother notifying her that he has exercised the options and he shall provide to her copies of all such correspondence.
(31)Within 14 days of the escrow period expiring, the father transfer 50 per cent of his shares obtained from the options exercised pursuant to Order 29 to the mother and provide the mother with a copy of his payment receipt and/or invoice and within a further 14 days thereafter the mother shall pay to the father the exercise price in respect of the shares transferred to her.
(32)In the event that the father is unable to transfer the shares obtained from the options exercised pursuant to Order 29 to the mother, then the father shall pay to the mother and amount of $X, representing 50 per cent of the profit on the shares obtained from the options exercised pursuant to Order 29, to be calculated in accordance with the following formula:
$X = [(exercise price – share market price) / 2]
(33)In the event that the share options are exercised pursuant to Order 29, or transferred to the mother pursuant to Order 31 or profits are paid to the mother pursuant to Order 32, the mother indemnifies the father for any brokerage fees, bank transfer fees or other similar fees, income tax, withholding tax, capital gains tax, stamp duty or other similar tax as a consequence of the operation of those orders. Furthermore upon presentation of evidence of any such tax, duty or fee which is payable by him, the mother must within 14 days remit the required sum to the father or as he directs.
(34)Within seven days of receipt from his employer, the father shall provide to the mother copies of all letters, notes, records, transaction histories, correspondence, communications and any other document received by him from his employer in relation to his share options, subject to any obligations of confidentiality he may have with respect to documents, unless they have already been exercised or forfeited pursuant to Order 29 or any profits have been paid to the mother pursuant to Order 32.
(35)The father answer all requests for information made by the mother in relation to his share options in writing within seven days of the request for information being made, subject to any obligations of confidentiality he may have with respect to such information, unless they have already been exercised or forfeited pursuant to Order 29 or any profits have been paid to the mother pursuant to Order 32.
(36)In the event of any event occurring which would disentitle the father to receiving some or all of his employee share options, he shall notify the mother in writing within 14 days and provide any and all correspondence relevant to that event unless they have already been exercised or forfeited pursuant to Order 29 or any profits have been paid to the mother pursuant to Order 32.
(37)And it is noted that in the event that the share options are not to “in the money” by the expiry date, then the father shall not seek to exercise the options and any rights of the mother pursuant to these Orders are thereupon extinguished.
Superannuation
(38)In accordance with subsection 90MT(4) of the Act, a base amount of $56,716 is allocated to the mother out of father’s interest in the F Superannuation Fund.
(39)In accordance with subsection 90MT(1)(a) of the Act:
(a)the mother is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b)the entitlement of the father in the F Superannuation Fund is correspondingly reduced by force of this order.
(40)The trustee of the F Superannuation Fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Act the entitlement awarded to the mother in the immediately preceding clause of this Order; and
(b)pay the entitlement whenever the trustee makes a splittable payment from the father’s interest in the F Superannuation Fund.
(41)This Order has effect from the operative time and the operative time is the fourth business day following the date of service of these Orders on the trustee.
(42)After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the SIS Regulations”), the mother shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the mother’s request in accordance with the SIS Regulations, for the rollover or transfer of the non‐member spouse interest to a complying superannuation fund of the mother’s choosing in accordance with the SIS Regulations.
(43)The Court notes:
(a)the value of the non‐member spouse’s interest is calculated in accordance with the SIS Regulations; and
(b)any payments from the father’s superannuation interest in the F Superannuation Fund made after the trustee has created a new interest in the mother’s name in the F Superannuation Fund are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001 (Cth).
(44)That each party shall do all things necessary including providing all consents to give effect to these Orders in the time periods prescribed in these orders.
(45)That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
(46)Leave is granted to the parties to apply within 21 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Paskin & Laurence has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
FAMILY COURT OF AUSTRALIA AT SYDNEY FILE NUMBER: SYC 8145 of 2014
Mr Paskin Applicant
And
Ms Laurence Respondent
REASONS FOR JUDGMENT
Introduction
1.These are parenting and property settlement proceedings commenced by Mr Paskin against Ms Laurence. I will refer to them as the father and the mother, respectively. The parenting proceedings involve the parties’ son, X (“the child”) who is six years of age. The child is represented by an Independent Children’s Lawyer (“ICL”).
Applications
2.The father provided a minute of orders sought in his case outline prior to the final hearing in September 2017. The orders sought in relation to property were subsequently amended pursuant to an order made on 23 November 2017 and amended again on 14 June 2018. The orders sought by the father in relation to parenting were are follows:
FINAL PARENTING ORDERS
1.The child live with the mother (subject to order 12 herein).
2.The child spend time with the father as follows (subject to order 12 herein):
a.From the commencement of Term 4 2017, each alternate weekend from 9.00 AM each Saturday until 7.00 PM Sunday, and each Tuesday in the off week from after school or 3.00 PM until 7.00 PM.
b.From conclusion of Term 4 2017 and during the Term 4 2017/8 school holiday period (that is from the conclusion of school in Term 4 until the commencement of school in Term 1), each alternate weekend from 9.00am Saturday until 9.00am Monday, and each Tuesday from 9.00 AM until 7.00 PM.
c.From the commencement of Term 1, 2018, each alternate weekend from after school or 3.00 PM Friday until before school Monday, and each Tuesday in the off week from after school or 3.00 PM until before school or 9.00am Wednesday.
d.From the conclusion of Term 1, 2018, for half of each NSW School Holiday period as follows:
i.In odd years, for the first half of all school holidays,
ii.In even years, for the second half of all school holidays.
e.On two days from 10.00 AM until 7.00 PM over the
Christmas periodperiod 20 to 29 December each year, with the father to provide notice to the mother of those dates no less than one-month prior.f.On Easter:
i.In odd years, from afterschool on Easter Thursday until 7.00 PM Easter Saturday;
ii.In even years, from 7.00 PM Easter Saturday until 7.00 PM Easter Monday.
g.On father’s birthday, if the child is not already spending time with the father, from 9.00 AM until 7.00 PM
h.On Father’s day, if it not a weekend the child would otherwise be spending time with the father, from 9.00 AM Saturday on the father’s day weekend, until 7.00 PM Sunday.
i.On the child’s birthday, and the father is not already spending time with the child, if it is a school day, from after school until 6.00PM, and if it is on a weekend, from 9.00 AM until 3.00 PM.
j.Any other times as agreed between the parties from time to time.
3.The father’s time with the child in accordance with order 2 above, be suspended:
a.On Mother’s Day, if that day falls on a day when the child would otherwise be spending time with the father, from 9.00 AM Saturday on the Mother’s Day weekend, until 7.00 PM Sunday.
b.On the mother’s birthday, if that day falls on a day when the child would otherwise be spending time with the father. from 9.00 AM until 7.00 PM.
c.On Easter:
i.In even years, from afterschool on Easter Thursday until 7.00 PM Easter Saturday;
ii.In odd years, from 7.00 PM Easter Saturday until 7.00 PM Easter Monday.
d.From the conclusion of Term 1, 2018, for half of each NSW School Holiday period as follows:
i.In even years, for the first half of all school holidays,
ii.In odd years, for the second half of all school holidays.
e.On the child’s birthday, and the father is already spending time with the child, if it is a school day, from after school until 6.00PM, and if it is on a weekend, from 9.00 AM until 3.00 PM.
4.That for the purpose of changeover in accordance with order 2 and 3 above that does not occur at the child’s school, then the father is to collect the child from the mother’s residence at the commencement of time, and the mother is to collect the child from the father’s residence at the conclusion of time, or other appropriate place of collection as agreed in advance between the parties.
5.The father be permitted to attend events held by the child’s school from time to time, including assemblies, sports carnivals, award ceremonies etc.
6.The mother notify the father of all extra curricular activities the child is enrolled in, and the father be permitted to attend those activities from time to time.
7.The father have electronic communication, including by telephone and/or skype/video calls with the child on two occasions each week between 5.00pm and 5.30pm, with the mother to provide the father with contact details and to facilitate that communication.
8.Each party notify the other of any emergency, serious medical emergency and/or illness relating to the child whilst in the party’s care, including providing the other party sufficient details to enable both parties to be consulted and advised with respect to such illness and/or condition and any treatments recommended or provided.
9.The father be permitted to communicate with the child’s medical practitioners and to receive reports from those medical practitioners with respect to medical treatment the child may receive from time to time.
10.That pursuant to Section 65Y(2) of the Family Law Act, each party is permitted to take the child outside of Australia when the child is living with that parent pursuant to these orders, provided the travelling parent provides not less than 28 days notice of their intention to travel overseas, and 14 days prior to the departure overseas provides to the other parent:
a.A copy of the travel itinerary for the child;
b.Particulars of where the child will be staying including address and contact telephone numbers.
11.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 the 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.
12.In the event the mother makes an application for relocation, the father seeks the following orders:
a.The child reside with the father during any period of relocation, interstate or overseas.
b.The time the child is to spend with the mother be particularised once evidence and particulars are provided by the mother as to her possible proposed relocation.
3.The father provided a revised minute of order in relation to property on 14 June 2018 as follows:
…
Two Pool Approach:
1.THE COURT NOTES the following definitions for the purpose of the following Orders:
1.1.The Husband’s share options or his share options means the Stock Options Grant offered to the Husband by his employer, [E Inc.] and referred to as ES-[2].
1.2.Grant date means the day on which the options are awarded by [E Inc.] to the Husband.
1.3.Exercise price means the amount payable by the employee to acquire the underlying security, being shares, over which the option is granted.
1.4.Expiry date means 90 days after the making of these Orders, or if the exercise window is closed when these Orders are made, then 90 days from the date of the first re-opening of the exercise window after the making of these Orders.
1.5.Profit means the difference between the exercise price and the market price of the shares and to be ‘in the money’ means the current share market price of the share is higher than the exercise price.
1.6.Fair market price means the current value of the shares as determined by the [E Inc.] Board, or if shares in [E Inc.] are trading on a public stock exchange (such as NASDAQ), then the price as reported by that stock exchange.
1.7.Escrow period means any period during which the shares acquired under the scheme must be held by the employee prior to being transferred.
2.Within 14 days of the making of these orders the parties do all things and sign all documents so as to divide the monies in the joint D account...66 and joint [D Bank] account...39 such that the Wife receive $163,851 and the Husband receive the balance, and thereafter cause those accounts to be closed.
3.That prior to the expiry date the Wife must transfer to the Husband the Exercise price for 55% of his share options and the Husband must do all acts and things and sign all documents necessary to exercise the corresponding percentage of his share options (if he has not already done so), including but not limited to executing any form of Notice required PROVIDED THAT the shares are in the money. If the Wife does not transfer to the Husband the Exercise price for 55% of his share options prior to the Expiry date, she will thereupon forfeit any right to his share options.
4.That within seven (7) days of the Husband exercising his share options pursuant to Order 3, he provide written notice to the Wife notifying her of that he has exercised the options and he shall provide to her copies of all such correspondence.
5.That within 14 days of the escrow period expiring, the Husband transfer the shares obtained from the options exercised pursuant to Order 3 to the Wife and provide the Wife with a copy of his payment receipt and/or invoice within a further fourteen (14) days thereafter.
6.That in the event that the Husband is unable to transfer the shares obtained from the options exercised pursuant to Order 3 to the Wife, then the Husband shall pay to the Wife an amount of $X, representing the Profit on the shares obtained from the options exercised pursuant to Order 3, to be calculated in accordance with the following formula:
$X = [(fair market value – exercise price) x (percentage of options exercised)]
7.In the event that, the share options are exercised pursuant to Order 3, or transferred to the Wife pursuant to Order 5, or Profits are paid to the Wife pursuant to Order 6, the Wife indemnifies the Husband for any brokerage fees, bank transfer fees or other similar fees, and income tax, withholding tax, capital gains tax, stamp duty or other similar tax as a consequence of the operation of those orders. Furthermore upon presentation of evidence of any such tax, duty or fee which is payable by him, the Wife must within 14 days remit the required sum to the Husband or as he directs.
8.That within seven (7) days of receipt from his employer, the Husband shall provide to the Wife, copies of all letters, notes, records, transaction histories, correspondence, communications and any other document received by him from his employer in relation to his share options, subject to any obligations of confidentiality he may have with respect to documents, unless they have already been exercised or forfeited pursuant to Order 15 or any profits have been paid to the Wife pursuant to Order 6.
9.That the Husband answer all requests for information made by the Wife in relation to his share options in writing within seven (7) days of the request for information being made, subject to any obligations of confidentiality he may have with respect to such information, unless they have already been exercised or forfeited pursuant to Order 6 or any profits have been paid to the Wife pursuant to Order 6.
10.That in the event of any event occurring which would disentitle the Husband to receiving some or all of his employee share options, he shall notify the Wife in writing within fourteen (14) days and provide any and all correspondence relevant to that event unless they have already been exercised or forfeited pursuant to Order 3 or any profits have been paid to the Wife pursuant to Order 6.
11.AND IT IS NOTED that in the event that the share options are not to “in the money” by the Expiry date, then the Husband shall not seek to exercise the options and any rights of the Wife pursuant to these orders is thereupon extinguished.
12.Other than as herein provided, and as against the Wife, the Husband is hereby declared the sole legal and beneficial owner of:
12.1.His interest in [D Bank] Account …45;
12.2.His interest in [D Bank] Account …31;
12.3.[G Bank] Holdings Shares;
12.4.[Motor vehicle 1];
12.5.the [E Inc.] options ES-[1] and ES-[3];
12.6.the [E Inc.] Restricted Stock Units RU-[1];
12.7.All household contents in his possession and control; and
12.8.All other items of property and financial resources (excluding his superannuation interests) of whatsoever nature and kind in the name, possession, ownership or control of the Husband as at the date of these Orders.
13.Other than as herein provided, and as against the Husband, the Wife is hereby declared the sole legal and beneficial owner of:
13.1.Her interest in [D Bank] Account …115;
13.2.Her interest in [D Bank] Account …05;
13.3.Her interest in [D Bank] Account …915;
13.4.Her interest in ANZ Account …73
13.5.Her interest in [H Bank] Account …81;
13.6.[G Bank] Holdings Shares;
13.7.[Motor vehicle 2];
13.8.All household contents in her possession and control;
13.9.All jewellery in her possession and control; and
13.10.All other items of property and financial resources (excluding her superannuation interests) of whatsoever nature and kind in the name, possession, ownership or control of the Wife as at the date of these Orders.
14.Other than as otherwise set out in the Orders, the Wife be responsible for indemnifying and keeping indemnified the Husband in relation to all debts attaching to any property that she is to receive/retain pursuant to these Orders, including debt to her parents.
15.Other than as otherwise set out in the Orders, the Husband be responsible for indemnifying and keeping indemnified the Wife in relation to all debts attaching to any property that he is to receive/retain pursuant to these Orders.
16.The amount of $68,141 of [Mr Paskin’s] entitlement in the [F] Super Fund, member number … (“the fund”) is allocated as required by Section 90MT(4) of the Family Law Act 1975, to [Ms Laurence] out of [Mr Paskin’s] interest in the fund (“the base amount”).
17.That in accordance with Section 90MT(1)(a) of the Family Law Act 1975:
17.1.[Ms Laurence] is entitled to be paid the base amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001;
17.2.[Mr Paskin’s] entitlement to payments out of his interest in the fund is correspondently reduced by force of this order.
18.The Trustee of the fund being [F] Super Management Pty Limited (“the [F] Super Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
18.1.Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulation 2001, the entitlement created for [Ms Laurence] by the operation of these Orders; and
18.2.Pay the entitlement whenever the [F] Super Trustee makes a splittable payment out of [Mr Paskin’s] interest in the fund.
19.That Orders 16 to 18 have effect from the operative time and the operative time for this Order is four (4) business days from the date of service of a sealed Order upon the [F] Super Trustee.
20.That Orders 16 to 19 binds the [F] Super Trustee.
21.The parties each do all acts and procure the doing of all things and sign and procure the signing of all documents necessary to give full force and effect to the provisions of these orders and in the event that either party refuses or neglects to comply with any provision of these Orders within fourteen (14) days of a written request to do so, then a Registrar of this Court at Sydney is appointed, pursuant to Section 106A of the Family Law Act 1975, to execute all documents in the name of that party and to do all acts and things necessary to give validity and operation to this order.
One Pool Approach:
1.THE COURT NOTES the following definitions for the purpose of the following Orders:
1.1The Husband’s share options or his share options means the Stock Options Grant offered to the Husband by his employer, [E Inc.]. and referred to as ES-[1], ES-[2] and ES-[3].
1.2. Grant date means the day on which the options are awarded by [E Inc.]. to the Husband.
1.3.Exercise price means the amount payable by the employee to acquire the underlying security, being shares, over which the option is granted.
1.4.Expiry date means 90 days after the making of these Orders, or if the exercise window is closed when these Orders are made, then 90 days from the date of the first re-opening of the exercise window after the making of these Orders.
1.5.Profit means the difference between the exercise price and the market price of the shares and to be ‘in the money’ means the current share market price of the share is higher than the exercise price.
1.6.Fair market price means the current value of the shares as determined by the [E Inc.] Board, or if shares in [E Inc.] are trading on a public stock exchange (such as NASDAQ), then the price as reported by that stock exchange.
1.7.Escrow period means any period during which the shares acquired under the scheme must be held by the employee prior to being transferred.
2.Within 14 days of the making of these orders the parties do all things and sign all documents so as to divide the monies in the joint D Bank account ...66 and joint D Bank account...39 such that the Wife receive $50,037 and the Husband receive the balance, and thereafter cause those accounts to be closed.
3.That prior to the expiry date the Wife must transfer to the Husband the Exercise price for 35% of his share options and the Husband must do all acts and things and sign all documents necessary to exercise the corresponding percentage of his share options (if he has not already done so), including but not limited to executing any form of Notice required PROVIDED THAT the shares are in the money. If the Wife does not transfer to the Husband the Exercise price for 35% of his share options prior to the Expiry date, she will thereupon forfeit any right to his share options.
4.That within seven (7) days of the Husband exercising his share options pursuant to Order 3, he provide written notice to the Wife notifying her of that he has exercised the options and he shall provide to her copies of all such correspondence.
5.That within 14 days of the escrow period expiring, the Husband transfer the shares obtained from the options exercised pursuant to Order 3 to the Wife and provide the Wife with a copy of his payment receipt and/or invoice within a further fourteen (14) days thereafter.
6.That in the event that the Husband is unable to transfer the shares obtained from the options exercised pursuant to Order 3 to the Wife, then the Husband shall pay to the Wife an amount of $X, representing the Profit on the shares obtained from the options exercised pursuant to Order 3, to be calculated in accordance with the following formula:
$X = [ (fair market price – exercise price) x (percentage of options exercised) ]
7.In the event that, the share options are exercised pursuant to Order 3, or transferred to the Wife pursuant to Order 5, or Profits are paid to the Wife pursuant to Order 6, the Wife indemnifies the Husband for any brokerage fees, bank transfer fees or other similar fees, and income tax, withholding tax, capital gains tax, stamp duty or other similar tax as a consequence of the operation of those orders. Furthermore upon presentation of evidence of any such tax, duty or fee which is payable by him, the Wife must within 14 days remit the required sum to the Husband or as he directs.
8.That within seven (7) days of receipt from his employer, the Husband shall provide to the Wife copies of all letters, notes, records, transaction histories, correspondence, communications and any other document received by him from his employer in relation to his share options, subject to any obligations of confidentiality he may have with respect to documents, unless they have already been exercised or forfeited pursuant to Order 15 or any profits have been paid to the Wife pursuant to Order 6.
9.That the Husband answer all requests for information made by the Wife in relation to his share options in writing within seven (7) days of the request for information being made, subject to any obligations of confidentiality he may have with respect to such information, unless they have already been exercised or forfeited pursuant to Order 6 or any profits have been paid to the Wife pursuant to Order 6.
10.That in the event of any event occurring which would disentitle the Husband to receiving some or all of his employee share options, he shall notify the Wife in writing within fourteen (14) days and provide any and all correspondence relevant to that event unless they have already been exercised or forfeited pursuant to Order 3 or any profits have been paid to the Wife pursuant to Order 6.
11.AND IT IS NOTED that in the event that the share options are not to “in the money” by the Expiry date, then the Husband shall not seek to exercise the options and any rights of the Wife pursuant to these orders is thereupon extinguished.
12.Other than as herein provided, and as against the Wife, the Husband is hereby declared the sole legal and beneficial owner of:
12.1.His interest in [D Bank] Account …45;
12.2.His interest in [D Bank] Account …31;
12.3.[G Bank] Holdings Shares;
12.4.[Motor vehicle 1];
12.5.the [E Inc.] Restricted Stock Units RU-1;
12.6.All household contents in his possession and control; and
12.7.All other items of property and financial resources (excluding his superannuation interests) of whatsoever nature and kind in the name, possession, ownership or control of the Husband as at the date of these Orders.
13.Other than as herein provided, and as against the Husband, the Wife is hereby declared the sole legal and beneficial owner of:
13.1.Her interest in [D Bank] Account …115;
13.2.Her interest in [D Bank] Account …05;
13.3.Her interest in [D Bank] Account …915;
13.4.Her interest in ANZ Account …73;
13.5.Her interest in [H Bank] Direct Account …81;
13.6.[G Bank] Holdings Shares;
13.7.Motor vehicle 2;
13.8.All household contents in her possession and control;
13.9.All jewellery in her possession and control; and
13.10.All other items of property and financial resources (excluding her superannuation interests) of whatsoever nature and kind in the name, possession, ownership or control of the Wife as at the date of these Orders.
14.Other than as otherwise set out in the Orders, the Wife be responsible for indemnifying and keeping indemnified the Husband in relation to all debts attaching to any property that she is to receive/retain pursuant to these Orders, including debt to her parents.
15.Other than as otherwise set out in the Orders, the Husband be responsible for indemnifying and keeping indemnified the Wife in relation to all debts attaching to any property that he is to receive/retain pursuant to these Orders.
16.The amount of $23,260 of [Ms Laurence’s] entitlement in the [V] Superannuation Fund (“the fund”) is allocated as required by Section 90MT(4) of the Family Law Act 1975, to [Mr Paskin] out of [Ms Laurence’s] interest in the fund (“the base amount”).
17.That in accordance with Section 90MT(1)(a) of the Family Law Act 1975:
17.1.[Mr Paskin] is entitled to be paid the base amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001;
17.2.[Ms Laurence’s] entitlement to payments out of her interest in the fund is correspondently reduced by force of this order.
18.The Trustee of the fund shall do all such acts and things and sign all such documents as may be necessary to:
18.1.Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulation 2001, the entitlement created for [Mr Paskin] by the operation of these Orders; and
18.2.Pay the entitlement whenever the Trustee makes a splittable payment out of [Ms Laurence’s] interest in the fund.
19.That Orders 16 to 18 have effect from the operative time and the operative time for this Order is four (4) business days from the date of service of a sealed Order upon the Trustee.
20.That Orders 16 to 19 binds the Trustee.
21.The parties each do all acts and procure the doing of all things and sign and procure the signing of all documents necessary to give full force and effect to the provisions of these orders and in the event that either party refuses or neglects to comply with any provision of these Orders within fourteen (14) days of a written request to do so, then a Registrar of this Court at Sydney is appointed, pursuant to Section 106A of the Family Law Act 1975, to execute all documents in the name of that party and to do all acts and things necessary to give validity and operation to this order.
4.During the September 2017 trial, a minute of orders sought by the mother was provided in relation to parenting and property proceedings. However, pursuant to directions made on 23 November 2017, on 15 December 2017 the mother provided an amended minute of the parenting orders she sought, which were as follows:
Parenting
1.That the child [X] born … 2011 (“the child”) live with the Mother.
2.[The child] spend time with the Father as follows:
2.1.During the NSW School terms:
2.1.1.From the date of these orders up to the commencement of Term 2, 2018 school term, as follows:
2.1.1.1.Each Tuesday from after school, or 3:00pm, until 6:30pm; and
2.1.1.2.Each alternate weekend from 9:00am Saturday to 6:30pm Sunday.
2.1.2.From the commencement of Term 3, 2018 school term, on a fortnightly basis:
2.1.2.1.Week 1: from after school or 3pm Friday until 6:30pm Sunday; and
2.1.2.2.Week 2: on Tuesday from after school, or 3pm, until 6:30pm.
2.1.3.From the commencement of Term 4, 2018 school term and thereafter, on a fortnightly basis:
2.1.3.1.Week 1: from after school or 3pm Friday until 6:30pm Sunday; and
2.1.3.2.Week 2: on Tuesday from after school, or 3pm, until before school, or 9am, Wednesday.
2.2.For the NSW gazetted Terms 1, 2 and 3 school holiday periods, for a total 3 nights, by agreement, and failing agreement:
2.2.1.In odd numbered years, for 2 nights in the first half of the school holiday period, from 9:00am on the first Tuesday of the school holiday period up to 6:30pm that following Thursday and for 1 night in the second half of the school holiday period, from 9:00am on the second Friday of the school holiday up to 6:30pm Saturday; and
2.2.2.In even numbered years, for 1 night in the first half of the school holiday period, from 9:00am on the first Tuesday of the school holiday period up to 6:30pm Wednesday and for 2 nights in the second half of the school holiday period, from 9:00am on the second Saturday of the school holiday period up to 6:30pm that Monday;
2.3.During the NSW gazetted Term 4 2018 and Term 4 2019 holiday periods for a total of 10 nights, by agreement, failing agreement as follows:
2.3.1.for 3 nights commencing the first Friday after completion of the NSW school term up to 6:30pm Monday;
2.3.2.For 2 nights in week 3 of the school holiday period from 9:00am Tuesday to 6:30pm Thursday;
2.3.3.For 2 nights in week 4 of the school holiday period from 9:00am Tuesday to 6:30pm Thursday; and
2.3.4.For 3 nights in week 5 of the school holiday period from 9:00am that Friday to 6:30pm Monday.
2.4.From 1 February 2020 thereafter:
2.4.1.For the NSW gazetted Terms 1, 2 and 3 school holiday periods, for 5 nights, by agreement, failing agreement as follows:
2.4.1.1.In odd numbered years, for the first half of the school holidays commencing Tuesday of the first week of school holidays; and
2.4.1.2.In even numbered years, for the second half of the school holidays commencing Tuesday of the second week of school holidays.
2.4.2.For the NSW gazetted Term 4 school holiday period for 3 weeks, by agreement, failing agreement as follows:
2.4.2.1.In odd numbered years, for 5 consecutive nights in weeks 1, 3 and 5 of the school holidays; and
2.4.2.2.In even numbered years for 5 consecutive nights in weeks 2, 4 and 6 of the school holidays.
2.5.On Special occasions as follows:
2.5.1.On … (for the Father’s birthday) from 9:00am until 6:30pm;
2.5.2.On Father’s day, if it not a weekend the child would otherwise be spending time with the father, from 9:00am until 6:30pm on Sunday.
2.5.3.On the child’s birthday, if it is a school day, in odd numbered years (i.e. each alternate year) from after school until 6pm.
2.5.4.On Christmas Day in each even numbered years from 10am until 6pm; and
2.5.5.On Boxing Day in each odd numbered years from 10am until 6pm.
2.6.Any other times as agreed between the parties from time to time.
3.That the Father’s time with [the child] in accordance with Order 2 above, be suspended:
3.1.On Mother’s Day, if that day falls on a day when [the child] would otherwise be spending time with the Father;
3.2.On the Mother’s birthday, if that day falls on a day when [the child] would otherwise be spending time with the Father;
3.3.On [the child’s] birthday, if it is a school day, in even numbered years;
3.4.On Christmas Day in each even numbered year; and
3.5.On Boxing Day in each odd numbered year.
4.That in the event that the Father is unable to care for [the child] in accordance with Order 2 hereof, then the Father shall communicate his unavailability to care for [the child] to the Mother as soon as practicable and within twenty-four (24) hours of determining that he is unavailable to care for [the child] and the Mother shall be afforded the first right of caring for [the child].
5.That for those changeovers that do not occur at [the child’s] school, the Father is to collect [the child] from the Mother’s residence at the commencement of time, and to return [the child] to the Mother’s residence at the conclusion of time, or other appropriate place of collection as agreed in advance between the parties.
6.That for the purpose of the Father’s time with [the child] during school terms, the Father is to ensure that any homework that the child may receive that day from school is completed and that the child has had dinner prior to being returned to the Mother.
7.That the Father be permitted to attend events held by [the child’s] school, including but not limited to assemblies, sports carnivals and award ceremonies.
Parental Responsibility
8.That the Mother shall have sole parental responsibility for [the child] in relation to major long term issues.
9.That the Mother shall consult the Father about decisions to be made in the exercise of parental responsibility as follows:
9.1.By email/in writing with as much information as is available at that time and which is relevant to the decision to be made.
9.2.Upon receipt of the initial information, the Father shall provide a prompt response, to facilitate the mother’s consideration of his input.
9.3.Both parents shall ensure that all consultation between them in relation to parental responsibility for [the child] is conducted in good faith, is child focused and is not derogatory of the other parent.
10.That the Mother notify the Father of all extra curricular activities [the child] is enrolled in, and the Father be permitted to attend those activities.
11.Each party notify the other of any emergency, serious medical emergency and/or illness relating to [the child] whilst in the party’s care, including providing the other party sufficient details to enable both parties to be consulted and advised with respect to such illness and/or condition and any treatments recommended or provided.
12.That the Father be permitted to communicate with the child’s medical practitioners and to receive reports from those medical practitioners with respect to medical treatment [the child] may receive.
13.That both parents be restrained from using physical discipline on [the child], including but not limited to squeezing any part of his body.
14.That [the child] shall continue with his soccer (training, games and other special soccer-related events) and his piano (classes and special events) and both parents shall ensure that he participate and is present at these events whilst he is in their care.
15.If at any time during the duration of these Orders [the child] requires medical treatment whilst in the Father’s care, the Father shall immediately call the mother to inform her of same, and both parents may attend upon the medical professional.
16.That if at any time [the child] suffers any injury (not requiring medical intervention) whilst in the Father’s care, the Father shall inform the Mother of same (including how the injury happened) at changeover after the visit.
Family Therapy
17.That Father continues to attend upon his psychologist, [Mr B], at times and at a frequency as recommended by [Mr B].
18.The Father shall provide all consents and authorities necessary to permit the Mother to confirm with [Mr B] from time to time that the Father continues to attend upon [Mr B].
19.The Mother shall be permitted to communicate with [Mr B] any incidences of violence or other behaviour from the Father to the child which she believes endangers the child, so that such issues may be addressed by [Mr B] with the Father in the course of the Father’s therapy.
20.That Father continues to engage in family therapy with [Ms C], both with [the child] and alone. That the frequency of the family therapy occurring which includes the child be no more than once per month or at least once every 3 months.
21. The Father shall provide all consents and authorities necessary to permit the Mother to confirm with [Ms C] from time to time that the Father continues to engage in family therapy.
22.The Mother shall be permitted to report to [Ms C] any incidences of violence or other behaviour from the Father to [the child] which she believes endangers [the child], so that such issues may be addressed by [Ms C] with the Father (and [the child]) in the course of the therapy.
23.The Mother shall be permitted to attend upon [Ms C] on any occasion if she so chooses.
24.[The child] is permitted to be present at any such attendance with [Ms C], should [Ms C] agree to and/or recommend [the child’s] presence and the Father shall pay in full the fees associated with [the child’s] attendance upon [Ms C].
Travel
25.That [X] born on … 2011 is permitted to have an Australian travel document.
26.That the parties shall from time to time give all consents and sign all documents and the mother shall pay any fee to ensure that [the child] has a current and valid passport pursuant to Order 25 hereof.
27.That the Mother be permitted to take the child out of Australia on holidays, for a period not exceeding two (2) calendar months provided that she gives to the Father written details of the holiday including:
27.1.Dates of departure from and return to Australia
27.2.Copy of itinerary provided by travel agent or airline
27.3.Copy of return airline ticket/s
27.4.Places it is intended to visit whilst away from Australia
27.5.Details of how [the child] can be contacted whilst away from Australia including contact telephone number and address(if known)
28.That during any periods referred to in Order 27 hereof, the Mother facilitate [the child] telephoning the Father on not less than on two (2) occasion each week.
Relocation
29.IT IS NOTED for the purpose of the following Orders that the Mother may be required to or may wish to accept an interstate or overseas position, deployment or secondment for work (hereafter, “the posting”).
30.That within fourteen (14) days of the Mother’s acceptance of the posting, the Mother shall notify the Father in writing of her intention to remove [the child] from Australia on a temporary basis and provide him with details of the posting.
31.That the Mother be permitted to change [the child’s] place of residence on a temporary basis for a period of up to three (3) years provided she gives notice in accordance with these Orders.
32.That for the purpose of the above Order, the Mother be permitted to remove [the child] from the Commonwealth of Australia for the duration of the posting.
33.That in the event that the Mother accepts the posting, the above Orders in relation to the time [that the child] spends with his Father be suspended for the duration of the Mother’s posting.
34.That the Mother shall inform the Father of the school [the child] attends and all medical treatments performed on [the child].
35.That during the period of the posting, [the child] shall spend time with the Father in Australia for two (2) block periods of time per year. Such periods to include the Christmas holiday period and one (1) school term holiday period, to be determined by [the child’s] country of residence.
36.That for the purpose of Order 35 above, such time is to be by agreement and failing agreement, [the child] shall spend time with the parties as follows:
36.1.Days 1 to 3 (inclusive) from 9:00am on day 1 until 6:30pm on day 3 with the Father; and
36.2.For the following two (2) consecutive days with the Mother,
with that rotational cycle continuing thereafter for duration of [the child’s] residence in Australia.
37.That [the child] shall spend additional time with his Father during school terms in the country where he is residing and for the purpose of this Order, the Father shall give the Mother not less than fourteen (14) days notice of his intention to travel and spend time with [the child].
38.That for the purpose of Order 37 above, such time is to be by agreement and failing agreement, [the child] shall spend time with the parties as follows:
38.1.Days 1 to 3 (inclusive) from 9:00am on day 1 until 6:30pm on day 3 with the Father; and
38.2.For the following two (2) consecutive days with the Mother,
with that rotational cycle continuing thereafter for duration of the time that the Father is spending in [the child’s] country of residence.
39.The parties shall each take all reasonable steps to facilitate [the child] having regular telephone and Skype communication with the father.
5.For the purposes of paragraphs 31 and 32 the mother’s counsel said that the mother seeks that she be permitted to remove the child from Australia for the purposes of one overseas placement to the United States of America, the United Kingdom or New Zealand, of up to three years duration.
6.On 14 June 2018 the mother identified the following as the orders she sought in relation to property division:
Property
40.That an Order by way of alteration of property interest pursuant to s79 of the Family Law Act 1975 (Cth) be made in terms of paragraph 41 to 53 of this document in order to address the consequences of the breakdown of the marital relationship and the injustice that would occur given the circumstances of the relationship if legal and equitable title were not altered.
41.That within twenty-eight (28) days of the date of these Orders, each party shall do all things necessary to cause the following:
41.1.The monies held in [D Bank] - BSB ... account number …66 and ...39 be paid to the wife.
The parties thereafter do all things and sign all documents necessary to close those accounts.
42.That within 30 days the husband pay to the wife or as she may direct the sum of $217,000.
43.That, as between the Husband and Wife, and subject to the above Orders the Husband and Wife shall each respectively retain all interest in and entitlement to: -
43.1.All personal property now in his/her respective possession or control.
43.2.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
43.3.All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
Superannuation
44.That in accordance with Section 90MT(4) of the Family Law Act 1975, a base amount of $141,623 is allocated to the Wife out of Husband’s interest in the [F] Superannuation Fund.
45.That, in accordance with Section 90MT(1)(a) of the Family Law Act 1975:
45.1.The Wife is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
45.2.the entitlement of the Husband in the [F] Superannuation Fund is correspondingly reduced by force of this Order.
46.That the trustee of the [F] Superannuation Fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
46.1.calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the Wife in the immediately preceding clause of this Order; and
46.2.pay the entitlement whenever the trustee makes a splittable payment from the Husband’s interest in the [F] Superannuation Fund.
47.That this Order has effect from the operative time and the operative time is the fourth business day following the date of service of these Orders on the Trustee.
48.That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the Wife shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Wife’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the Wife’s choosing in accordance with the SIS Regulations.
49.That the Court notes:
49.1.the value of the non-member spouse’s interest is calculated in accordance with the SIS Regulations;
49.2.any payments from the Husband’s superannuation interest in the [F] Superannuation Fund made after the trustee has created a new interest in the Wife’s name in the [F] Superannuation Fund are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001;
49.3.That for the purpose of the above Orders, the Wife is seeking to obtain 70% of the parties overall superannuation and for this purpose, the value of the Wife’s superannuation that has been adopted is $121,717.07, pursuant to the expert Valuation prepared by [Mr J] dated I March 2016. It is the intention of the parties to obtain an updated Report from [Mr J] prior to Hearing.
50.That pursuant to s81 of the Family Law Act 1975 the parties intend these Orders to finally determine all financial relations and issues between them and avoid further proceedings between them.
51.That each party shall do all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these orders.
52.That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to s106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
53.That both the Husband and the Wife hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
54.That the Husband pay the Wife’s costs of an incidental to these proceedings.
7.The ICL’s proposals were set out in a draft document tendered during final submissions on 28 September 2017. The ICL sought:
1.That the parties have equal shared parental responsibility in respect of all long term decisions concerning the care, welfare and development of the child, [X] (born … 2011) (“the child”).
2.The child live with the mother.
3.The child spend time with the father as follows:
3.1.From the commencement of Term 4 2017, on a 2 week basis:
3.1.1.Week 1: from 9am Saturday until 7pm Sunday; and
3.1.2.Week 2: from after school or 3pm until 6.30pm on Tuesday.
3.2.During the Term 4 2017 school holiday period (that is from the conclusion of school in Term 4 until the commencement of school in Term 1) on a 2 week basis:
3.2.1.Week 1: 9am until 7pm on Tuesday and 9am Saturday until 9am Monday; and
3.2.2.Week 2: 9am until 7pm on Thursday.
3.3.During the Term 1, 2018 school term, on a 2 week basis:
3.3.1.Week 1: from after school or 3pm Friday until before school Monday; and
3.3.2.Week 2: from after school or 3pm Tuesday until before school or 9am Wednesday.
3.4.During the 2018 Term 1 and Term 2 school holidays, from 9am of the first Saturday until 9am the following Thursday.
3.5.From the 2018 Term 3 school holidays, for half of each NSW school holidays period as follows:
3.5.1.In odd numbered years, for the first half of the school holidays; and
3.5.2In even numbered years, for the second half of the school holidays.
3.6.On the father’s birthday, if the child is not already spending time with the father, from 9am until 7pm.
3.7.On Father’s day, if it [sic] not a weekend the child would otherwise be spending time with the father, from 9am Saturday on the father’s day weekend, until 7pm Sunday.
3.8.In each odd numbered years, from 3pm Christmas Eve to 3pm Christmas Day;
3.9.In each even numbered years, from 3pm on Christmas Day to 3pm Boxing Day;
3.10.Any other times as agreed between the parties from time to time.
4.The father’s time with the child in accordance with order 3 above, be suspended:
4.1.On Mother’s Day, if that day falls on a day when the child would otherwise be spending time with the father, from 9am Saturday on the Mother’s Day weekend, until 7pm Sunday;
4.2.On the mother’s birthday, if that day falls on a day when the child would otherwise be spending time with the father from 9am until 7pm;
4.3.In each even numbered years, from 3pm Christmas Eve to 3pm Christmas Day;
4.4.In each odd numbered years, from 3pm on Christmas Day to 3pm Boxing Day;
5.That for the purpose of changeover in accordance with order 3 and 4 above that does not occur at the child’s school, then the father is to collect the child from the mother’s residence at the commencement of time, and the mother is to collect the child from the father’s residence at the conclusion of time, or other appropriate place of collection as agreed in advance between the parties.
6.Whilst the child is in the father’s care, the mother have electronic communication, including by telephone and/or skype/video calls with the child on each Monday between 5.00pm and 5.30pm, with the mother to provide the father with contact details and to facilitate that communication.
7.Whilst the child is in the mother’s care, the father to have electronic communication, including by telephone and/or skype/video calls with the child on each Thursday and Sunday between 5.00pm and 5.30pm, with the father to provide the mother with contact details and to facilitate that communication.
Notifications:
8.That each party notify the other as soon as possible and in any event within 2 hours of any serious injury or illness suffered by the child whilst with that party.
9.That each party notify the other within 48 hours of any change to their address and/or landline and/or mobile number and/or their email address.
10.That each party notify the other of the address and telephone numbers (if there is a landline) of the place/s where the child will be staying during the holiday periods spent away from their residence no later than 24 hours prior to the commencement of any such holiday period.
Overseas Holidays
11.That each party is permitted to take the child outside of Australia when the child is living with that parent pursuant to these orders, provided the travelling parent provides not less than 28 days notice of their intention to travel overseas, and 14 days prior to the departure overseas provides to the other parent
11.1.A copy of the travel itinerary for the child;
11.2.Particulars of where the child will be staying including address and contact telephone numbers.
Father’s Individual Therapy
12.The father to continue in therapy with [Mr B] or his agreed delegated [sic] within his practice at a frequency recommended by that therapist, at least until the child reaches the age of 13 years.
13.The father provide consent for [Mr B] to communicate with the mother to confirm the father’s attendance, without the provision of other details.
14.The father provide consent for [Mr B] to communicate with the Family Therapist pursuant to order 18.
Family Therapy
15.The father continue to attend upon [Ms C] or any other therapist she recommends for the purpose of providing parenting advice and family therapy (“Family Therapist”), on his own and with the child, at a frequency as recommended by [Ms C] until the child reaches 13 years of age.
16.Both parties to follow all reasonable directions of the Family Therapist.
17.The father provide consent for the Family Therapist to communicate with the mother confirm [sic] the father’s attendance, without the provision of other details.
18.The father provide consent for the Family Therapist to communicate with [Mr B].
Communication
19.That for the purposes of communicating with each other information about the child, the parents shall communicate respectfully with each other by telephone including SMS text about matters of an urgent nature and otherwise communicate respectfully with each other by email about day to day matters including live with and time with arrangements for the child.
20.That each parent shall refrain from making critical or derogatory remarks in relation to the other parent or members of their extended family in the presence or hearing of the child and that each parents do all things necessary to ensure that the child is not exposed to third parties making critical or derogatory comments about the other parent or members of their extended family.
Physical Discipline
21.The parties are restrained from physically striking the child.
Mediation
22.In the event that the parties disagree with issues arising from parental responsibility for the long term [sic] and welfare of the child, the parties shall:
22.1.Do all things and acts necessary to seek assistance from a family mediator;
22.2.Complete forthwith all forms and intake forms necessary to undertake family mediation;
22.3.Attend at a time nominated by the family mediator.
23.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 the 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.
8.In addition the ICL sought orders in relation to her costs in accordance with her earlier filed Case Outline as follows:
1.That each of the Applicant Father, [Mr Paskin] and the Respondent Mother, [Ms Laurence], are to each [sic] make payment to [Dr L] in respect of his preparation and court attendance for the final hearing commencing 25 September 2017 within 14 days of the date of these orders.
2.The Father shall pay to Legal Aid NSW the sum of $6,773.95 within 30 days of the date of these orders in full and final payment of his liability for the costs of the Independent Children’s Lawyer.
3.The mother shall pay to Legal Aid NSW the sum of $5,123.95 within 30 days of the date of these orders in full and final payment of her liability for the costs of the Independent Children’s Lawyer.
4.It is noted that such costs are in accordance with the Costs Notice attached to these orders and marked “Annexure A”.
9.The parents agreed to those orders and they were made by consent on 10 November 2017.
10.For reasons related to the property settlement proceedings, the hearing was listed again on 15 June 2018. As the hearing did not relate to parenting issues there was no appearance by or on behalf of the ICL. However, learned counsel for the mother and father advised that there was no change to the parenting orders sought on behalf of their clients. Of course some changes are necessarily required to the proposals of the parents and of the ICL in terms of the commencement date of the arrangements proposed and the timing of any progression in those arrangements. For example, notwithstanding the parties’ applications, no orders will be made by me as to the school holidays which occurred at the end of Term 1 in 2018 as those holidays have passed.
Expert Evidence
11.The following expert evidence was relied on:
(a)Report of Dr L dated 12 September 2016; and
(b)Report of the child K dated 30 August 2017.
The Hearing
12.The hearing commenced on 25 September 2017. On 28 September 2017 orders were made providing for the father to file and serve within 14 days a response to the orders proposed by the mother at paragraphs 43 to 52 inclusive of her minute of orders. The mother was to file any reply to that response within a further 14 days.
13.Also within 14 days of 28 September 2017 the father was required to file and serve a minute of revised orders for settlement of property which accorded with the submissions made in his case. The mother was to file any reply to the amended minute of orders within a further 14 days. Subject to compliance with those orders, on 28 September 2017, judgment was reserved.
14.The order made on 28 September 2017 requiring the father to file and serve within 14 days a minute of revised orders for settlement of property which accorded with the submissions made in his case, was not complied with.
15.On 10 November 2017 orders and notations were made by consent in accordance with the Case Outline prepared on behalf of the ICL, as amended as follows:
(a)That each of the Applicant Father, [Mr Paskin] and the Respondent Mother, Ms Laurence, are to make payment to [Dr L] in respect of his preparation and court attendance for the final hearing commencing 25 September 2017 within 14 days of the date of these orders.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;(e) the responsibilities of either party to support any other person;
247.I have set out above, what there is of the evidence in relation to the parties’ expenses.
(f) Subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,and the rate of any such pension, allowance or benefit being paid to either party;
248.I have referred to the parties’ superannuation interests.
(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
249.There is no probative evidence about lifestyle matters.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
250.Neither of the parties gave evidence about starting a new business or undertaking more study.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
251.The only relevant creditors are members of the mother’s family. There is nothing in the parties’ proposals that would adversely impact on them being repaid.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
252.Each of the parties completed post graduate studies during the relationship. Therefore it is likely that they each contributed to the income and earning capacity of the other.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
253.There is no evidence to the effect that the earning capacity of either party has been adversely affected by the marriage. The mother lost two years from her career while she cared for the child full-time. She lost the benefits that come with unbroken full-time employment such as paid leave, advancement opportunities, training et cetera but the evidence does not permit me to make a finding about the significance, if any, of the impact of those things on the mother’s earning capacity. Of course the loss of superannuation will be balanced in the splitting order made in these proceedings. The mother would like to take up an overseas placement through her employment. That is likely to be frustrated for some time but, again, there is no evidence that refusing such a posting would adversely impact the mother’s earning capacity.
(l) the need to protect a party who wishes to continue that party’s role as a parent;
254.Each of the parents intends to continue to have a role with the child but they are able to maintain full-time paid employment.
(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;
255.I have set out above what there is of that evidence. The fact is that the father has a benefit, not available to the mother, in that his weekly expenses are shared with his partner. That is true even though their current arrangement involves the expenses of the father’s household being shared in an uneven fashion. For reasons that are not explained, the father pays most of the living costs of the household he shares with Ms M, notwithstanding that her income is greater than his.
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties or vested bankruptcy property in relation to a bankrupt party;
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii)
256.Nothing comes to attention here.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
257.I have referred to the child support position.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
258.One consequence of the fact that the mother is, and will continue to be, the primary care giver for the child is that she will be prevented from taking up an opportunity for an overseas placement with her employment. Unless it is self-imposed, there is no such restriction on the father.
259.I have no doubt that the father will meet his formal child support obligations. However, the evidence suggests that there will be difficulty for the mother in securing the father’s assistance with informal, ad hoc or other expenses.
260.Otherwise nothing comes to attention here.
(p)the terms of any financial agreement that is binding on the parties.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage
261.There is no such agreement.
Section 79(4)(f)
262.Beyond those referred to above, there are no relevant orders made under the Act.
Section 79(4)(g)
263.I have referred to the child support position.
Conclusion
264.It is agreed that there should be an adjustment in favour of the mother, at least in relation to some parts of the matrimonial assets. The father contends that it should be a five per cent adjustment and the mother seeks an adjustment of 10 to 15 per cent.
265.The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:
(a)a settlement based on contributions alone will mean that the father receives about $132,000 more than the mother; and
(b)the father lives with a partner who has a greater income than either of the parents and assets of her own and yet her expenses are subsidised by the father; and
(c)the father has marginally more of his assets tied up in superannuation than is the case for the mother; and
(d)the greater parenting load will continue to fall to the mother.
266.Those factors all argue for an adjustment to the mother. In my view an adjustment of the order proposed by either party could be appropriate. These proceedings involve total assets of moderate value and the dollar value of an adjustment is accordingly reduced. I will provide for an adjustment of 7.5 per cent. That will represent about $98,722 and will make a difference between the parties of twice that sum.
Just And Equitable
267.The assets amount to $1,316,288 of which $457,001 is in the form of superannuation and $859,287 is in the form of non-superannuation assets.
268.If the assets are divided in the proportions 52.5 per cent to the mother and 47.5 per cent to the father then the mother would have about $691,052 ($239,926 in superannuation and $451,126 in other assets) and the father would have about $625,236 ($217,075 in superannuation and $408,861 in other assets). The effect of the ultimate orders will not necessarily achieve those outcomes because of the approach that I will take in respect of the options and because the ultimate outcome of a splitting order will be dependent on the application of the superannuation regulations.
269.As to the form of the orders, I will adopt the agreed approach in respect of the parties’ superannuation interests and make a splitting order but with a base amount that relates to a 52.5 per cent division to the mother.
270.As to the E Inc. share options, the mother’s proposal is that there be an adjustment out of the other assets whereby she will receive a distribution now for those options, based on a notional after tax value of the options. That approach has the advantage of simplicity and bringing the earliest end to the non‑child support aspects of the parents’ financial relationship. The father proposes that the options be dealt with in specie whereby the parties would share in the risks and rewards that are inherent in the options. Through his counsel he submits that it would be unfair to him if the mother is paid an amount referable to an option that he can never exercise because, for example, his employment is terminated. Even if he is able to exercise an option, it is submitted in his case that there is no guarantee that the 55 per cent value, which is the basis for the mother’s after-tax estimate, will accurately represent the net value of exercising the options once any necessary brokerage or other fees and Australian and, potentially, US taxation is levied.
271.In this instance, the balance must be in favour of fairness. There are the risks identified on behalf of the father about whether there will ever be a benefit to him from the options and about the real value of the benefit if it arises. The only way to insure against those variables is to make orders that are geared to any ultimate benefit received under the grants. As to the wording of orders that would deal with the options in specie, the parties attempted to agree on a set of orders but were unable to achieve that agreement. They could not even agree as to whether the disputes about the wording are matters of plain English drafting or matters about which expert opinion is required.
272.Exhibit C is the working document that has passed between the lawyers. It is based on an initial draft on behalf of the mother and bears changes proposed on behalf of the father which are shown as wording struck through and replacement wording, underlined. In the course of submissions I was told that the amendments to 43.1 were not controversial and that the changes proposed on behalf of the father by striking out the first clause 43.4 and amending 43.6 were not pressed on behalf of the father. The problem with that is that the proposed 43.6 appears to correct an error in the original 43.7. In that regard it is my understanding that the shares in E Inc. are listed on US exchanges. The father’s amendment refers to the NASDAQ exchange rather than the original suggestion that this is a Dow Jones Index stock. I suspect that the father is correct. Although they are not pressed by the father, I will make the changes to the old 43.7 that are proposed in the new 43.6.
273.That leaves the disputed matters to be the father’s proposal to substitute the first clause 43.5 with the second clause 43.4 and the proposed changes to paragraph 44 on the second page.
274.The original intent behind the definition of vesting date in the first clause 43.4 was to take up the meaning of that term under the options scheme. The changed definition proposed on behalf of the father would limit the period within which the parties could exercise an option. As I understand the arguments advanced, the father’s contention is that the limitation would prevent any uncertainty as to whether the mother could take up an option stretching on beyond 90 days after the orders are made or 90 days after a re-opening of an exercise window. The mother’s counsel argued that there should be no new limitation period created by the orders and the options should be exercisable as the scheme is designed. I do not see any real benefit in the father’s proposal. I will adopt the original drafting in the form of the first clause 43.5.
275.As to the dispute about clause 44 I do not understand the need for the changes proposed on behalf of the father. I will draft the orders based on the clause as it was originally drawn. If I understand the document correctly, that will largely require the rejection of the changes proposed to clauses 46 and 47. As to clause 48, it is my understanding that the shares are listed in the US and therefore the original clause 48 would seem to be unnecessary. The clause 48 proposed on behalf of the father goes to the possibility of fees and taxes that might be attracted by exercising the options. It is appropriate that the parties meet those costs equally. I will adopt the proposed clause 48. The changes proposed to clauses 49, 50, 51 and 52 seem sensible.
276.Both versions of the draft call for an equal division of the shares. Left to my own devices I would have made the same subsection 79(4)(d) – (g) adjustment across all assets but as the parties had apparently agreed on an equal division in respect of the shares generated by the option scheme, in the event that the mother’s preferred payout option was not taken up, I will take the same approach. Therefore the option orders discussed by the parties and as settled by me will be as follows:
43.THE COURT NOTES the following definitions for the purpose of the following Orders:
43.1The Husband’s share options or his share options means the Stock Options Grant offered to the Husband by his employer, [E Inc.], contained in the offer dated 13 April 2016 (originally 11 September 2013), with vesting start date 29 July 2013, and fully vested date 29 July 2017.
43.2Grant date means the day on which the options are awarded by E Inc. to the Husband.
43.3Exercise price means the amount payable by the employee to acquire the underlying security, being shares, over which the option is granted.
43.4Vesting date means the date on which the employee can exercise the option and acquire the underlying shares.
43.5Expiry date means the date on which the right to exercise the options and acquire the shares ceases.
43.5Profit means the difference between the exercise price and the market price of the shares and to be ‘in the money’ means the current share market price of the share is higher than the exercise price.
43.6Fair market price means the current value of the shares as determined by the [E Inc.] Board, or if shares in [E Inc.] are trading on a public stock exchange (such as NASDAQ), then the price as reported by that stock exchange.
43.7Escrow period means any period during which the shares acquired under the scheme must be held by the employee prior to being transferred.
44. That within fourteen (14) days of the vesting date, the Husband do all acts and things and sign all documents necessary to exercise his share options (if he has not already done so), including but not limited to executing any form of Notice required PROVIDED THAT the shares are in the money.
45.That within seven (7) days of the Husband exercising his share options pursuant to order [44], he provide written notice to the Wife notifying her of [sic] that he has exercised the options and he shall provide to her copies of all such correspondence.
46.That within 14 days of the escrow period expiring, the Husband transfer 50% of his shares obtained from the options exercised pursuant to order [44] to the Wife and provide the Wife with a copy of his payment receipt and/or invoice and within a further fourteen (14) days thereafter the Wife shall pay to the Husband the exercise price in respect of the shares transferred to her.
47.That in the event that the Husband is unable to transfer the shares obtained from the options exercised pursuant to Order [44] to the Wife, then the husband shall pay to the wife an amount of $X, representing 50% of the Profit on the shares obtained from the options exercised pursuant to Order [44], to be calculated in accordance with the following formula:
$X = [(Exercise price – share market price) / 2]
48.In the event that, the share options are exercised pursuant to Order [44], or transferred to the Wife pursuant to Order [46], or Profits are paid to the Wife pursuant to Order [47], the Wife indemnifies the Husband for any brokerage fees, bank transfer fees or other similar fees, and income tax, withholding tax, capital gains tax, stamp duty or other similar tax as a consequence of the operation of those orders. Furthermore upon presentation of evidence of any such tax, duty or fee which is payable by him, the Wife must within 14 days remit the required sum to the Husband or as he directs.
49.That within seven (7) days of receipt from his employer, the Husband shall provide to the Wife copies of all letters, notes, records, transaction histories, correspondence, communications and any other document received by him from his employer in relation to his share options, subject to any obligations of confidentiality he may have with respect to documents, unless they have already been exercised or forfeited pursuant to Order [44] or any profits have been paid to the Wife pursuant to Order [47].
50.That the Husband answer all requests for information made by the Wife in relation to his share options in writing within seven (7) days of the request for information being made, subject to any obligations of confidentiality he may have with respect to such information, unless they have already been exercised or forfeited pursuant to Order [44] or any profits have been paid to the Wife pursuant to Order [47].
51.That in the event of any event occurring which would disentitle the husband to receiving some or all of his employee share options, he shall notify the wife in writing within fourteen (14) days and provide any and all correspondence relevant to that event unless they have already been exercised or forfeited pursuant to order [44] or any profits have been paid to the wife pursuant to Order [47].
52.AND IT IS NOTED that in the event that the share options are not to “in the money” by the Expiry date, then the husband shall not seek to exercise the options and any rights of the Wife pursuant to these orders is [sic] thereupon extinguished.
277.I will incorporate those clauses in the final orders but as with all of the orders, will give the parties a short opportunity to bring the matter back in relation to issues about their wording.
278.The non-superannuation, non-options assets are:
Non-option assets
Owner Description Value 1 J D Bank Account …39 $43 2 J D Bank Account …66 $280,971 3 J D Bank Account ...02 (for the child) $3,136 4 M D Bank Account …115 $515 5 M D Bank Account …05 $7 6 M D Bank Account …915 $78 7 M ANZ Account …73 $1,420 8 M H Bank Direct Account …81 $1,075 9 M G Bank Holding Shares $2,064 10 M Motor vehicle 2 $3,000 11 M Household Contents $15,000 12 M Jewellery $9,100 13 F D Bank Account …45 $3,000 14 F D Bank Account …31 $1,000 15 F G Bank Holding Shares $2,292 16 F Household Contents $15,000 Total $337,701 279.If they are to be divided in the proportions 52.5 per cent to the mother and 47.5 per cent to the father, the mother would have about $177,293 and the father $160,408. The mother has the benefit of and would like to retain the following:
Owner Description Value 1 M D Bank Account …115 $515 2 M D Bank Account …05 $7 3 M D Bank Account …915 $78 4 M ANZ Account …73 $1,420 5 M H Bank Account …81 $1,075 6 M G Bank Holding Shares $2,064 7 M Motor vehicle 2 $3,000 8 M Household Contents $15,000 9 M Jewellery $9,100 Total $32,259
280.In order to bring her to 52.5 per cent of the balance of the assets she would need to receive $145,034 from the joint accounts.
281.The joint accounts are as follows:
Description Value D Bank Account …39 $43 D Bank Account …66 $280,971 D Bank Account ...02 (for the child) $3,136 $284,150 282.Although not included in the balance sheet, the mother owes members of her family $149,150, together with legal fees incurred since 28 September 2017.
283.That would leave the father to retain the assets listed below and a payment of $139,116 from the joint accounts.
Owner Description Value 1 F D Bank Account …45 $3,000 2 F D Bank Account …31 $1,000 3 F G Bank Holding Shares $2,292 4 F Household Contents $15,000 Total $21,292 284.Although not included in the balance sheet, the father owes his lawyers $59,343 together with the costs incurred since 28 September 2017.
285.In order to deal with the likelihood that interest has been earned on the joint accounts I will provide for a division of balance of the accounts in the proportions that reflect the ratio of my calculations above. That is a division in the proportions 51 per cent to the mother and 49 per cent to the father.
286.As to superannuation, each of the parties proposes a splitting order from the father’s superannuation interest.
287.The superannuation interests are as follows:
Member Name of Fund Type of Interest Value 1 M V Super Defined Benefit $183,210 2 F F Super Accumulation $273,791 Total $457,001 288.Translating a property settlement in the overall proportions 52.5 per cent to the mother and 47.5 per cent to the father into those interests would require a splitting order in respect of the father’s interest in his fund, using a base amount of $56,716 ($239,926 - $183,210). I will make that order.
Conclusion Under Section 79
289.This was a marriage that spanned 10 years and very significant contributions were made by each of the parties. The parties shared the work of the marriage but overall their contributions were made in the proportions 55 per cent by the father and 45 per cent by the mother. An adjustment of 7.5 per cent in favour of the mother is justified by reference to the imbalance of the care arrangements for the child and the fact that the father has the financial support of his partner. It is appropriate to deal with the father’s stock options directly. Albeit slightly different to the division referred to above, the parties drafted terms to achieve an equal division of any resultant benefit and I will adopt the same approach. In my view a property settlement resulting from the orders I propose will achieve a just and equitable division of the parties’ property.
290.I will allow the parties to bring the matter back within 21 days in respect of any machinery or wording issues arising from the orders.
I certify that the preceding two-hundred and ninety (290) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 25 July 2018.
Associate:
Date: 25 July 2018
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