Rademaker & Everhart
[2021] FedCFamC2F 171
•9 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rademaker & Everhart [2021] FedCFamC2F 171
File number(s): SYC 8136 of 2020 Judgment of: JUDGE BECKHOUSE Date of judgment: 9 September 2021 Catchwords: FAMILY LAW – interim parenting – spend time with and communication orders – fly in fly out worker – child has severe food allergies
FAMILY LAW – interim property – tax liability to the Australian Tax Office – transfer of the motor vehicle
Legislation: Family Law Act 1975 (Cth), ss 60B, 60CC, 61DA(1), 69ZL(1), 79, 80 Cases cited: Baghti & Baghti & Ors [2015] FamCAFC 71
Harris & Harris (1993) FLC 92-378
Medlow & Medlow (2016) FLC 93-692
MRR v GR (2010) 240 CLR 461
Salah and Salah (2016) FLC 93-713
Stanford & Stanford (2012) FLC 93-518
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Division: Division 2 Family Law Number of paragraphs: 139 Date of hearing: 2 September 2021 Place: Sydney Counsel for the Applicant: Ms Kaiti Solicitor for the Applicant: Lapointe Family Law Counsel for the Respondent: Ms Gillies SC Solicitor for the Respondent: Newnhams Solicitors ORDERS
SYC 8136 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RADEMAKER
Applicant
AND: MS EVERHART
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
9 SEPTEMBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The matter is listed for mention on 1 November 2021 at 9:30am.
Parenting
2.The children, X born in 2014 and Y born in 2018 (hereinafter “the children”) live with the Mother.
3.Whilst the Father is overseas, interstate or in quarantine, the children shall communicate with the Father by telephone, WhatsApp video call, or FaceTime on Monday, Tuesday and Saturday between the hours of 5.30pm and 6.00pm Sydney time for a period not exceeding 15 minutes.
4.Upon the Father returning to reside in the Sydney Metropolitan Area and after completing all quarantine obligations imposed by the New South Wales State Government from time to time, the children shall spend time with the Father as follows:
(a)X shall spend time with the Father on each alternate weekend from after school Friday, or 3pm if Friday is not a school day, until 4pm Sunday.
(b)Until Y turns three (3), he shall spend time with the Father on the same alternate weekend, with X, as follows:
(i)From after day care on Friday, or if Y is not attending day care, from 3pm until 7.30pm on Friday;
(ii)From 10am until 4pm on Saturday; and
(iii)From 10am until 4pm on Sunday.
(c)Once Y turns three (3), he shall spend time with the Father on each alternate weekend from after school Friday, or if it is not a school day from 3pm Friday until 4pm Sunday.
(d)Both children shall spend time with the Father each Wednesday from after school/day care, or if the children are not in school/day care, from 3pm until 7pm.
(e)Both children shall spend time with the Father by telephone, WhatsApp video call or Facetime on Tuesday and Thursday between 7pm and 7.30pm for a period not exceeding 10 minutes.
(f)Such other times as agreed between the parties in writing.
5.For the purposes of Order 4, the Father shall collect the children at the commencement of each period of time and deliver the children to the Mother at her home at the conclusion of each period of time.
6.X (and Y if there) shall spend time with the Mother by telephone, WhatsApp video call or FaceTime on the Saturday that they are with the Father, between 7pm and 7.30pm.
Special Days
7.Unless otherwise agreed by the parties in writing, the children shall spend time with the parents on the following special days:
(a)With the Mother from 9am until 4pm on Mother’s Day.
(b)With the Father from 9am until 4pm on Father’s Day.
(c)With the parent that they are not otherwise living with on each of the children’s birthdays from 2pm (or otherwise after school/day care) until 7pm.
(d)With the Father on the Father’s Birthday from 2pm (or otherwise after school/day care) until 7pm if the children are not already in his care.
(e)With the Mother on the Mother’s Birthday from 2pm (or otherwise after school/day care) until 7pm if the children are not already in her care.
(f)For the purposes of 2021 Christmas Eve, Christmas Day and Boxing Day:
(i)from 11am Christmas Eve until 11am Christmas Day with the Mother and the Mother shall return the children to the Father’s residence at the conclusion of her time.
(ii)from 11am Christmas Day until 5pm Boxing day with the Father and the Father shall return the children to the Mother’s residence at the conclusion of his time.
Children’s Health
8.Each party will notify the other immediately and, in any event, no later than within four (4) hours of any illness or injury necessitating urgent medical treatment whilst the children are in their respective care.
9.Each party shall inform the other of any illness or injury suffered by the children requiring hospitalisation or prescription medication and in the event of the latter each parent shall ensure that the children is provided with such medication and that it is administered in accordance with the directions of the treating practitioner.
10.Should either party make a medical appointment for the children with a General Practitioner or medical specialist they shall within 48 hours of the appointment advise the other parent by email of the appointment details.
11.Both parties shall authorise by these Orders any treating general practitioner and/or medical specialist to provide any medical summary or report by email to both parents.
12.Each party shall advise the other party by email about any information regarding the health, emotional wellbeing during the time the children are in their care including medication prescribed and/or taken, and changes in behaviours of the children.
13.Each party shall notify the other in writing of any change in address and/or telephone number within 48 hours of any such change.
14.Unless otherwise agreed in writing by the parties, the parties will communicate only about the children via the Divvito Parenting App except in the case of emergency or illness where SMS and telephone communication is acceptable.
15.The parties update each other on the children’s daily activities through the Divvito Parenting App on a weekly basis or otherwise any time there is a change to the children’s schedule. The daily schedule will be updated on the shared messaging system or one of a similar nature in the future consistent with changes in technology.
16.Each party is restrained from making critical or derogatory remarks about each other or members of each other’s family in the presence of the children or on social media or at all and the parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their family in the children’s presence or on social media.
Property
17.Within 48 hours of the date of these Orders, the Husband shall do all acts and things and sign all documents necessary to transfer to the Wife his unencumbered interest in the motor vehicle 1 being registration XXX.
18.Both parties do all acts and things necessary to authorise Newnhams Solicitors Pty Ltd to pay to the Australian Taxation Office, from funds held in controlled monies by no later than 30 September 2021 the amount of $285,187 being on account of the Husband’s personal tax liability in the sum of $262,030.75 and the amount of $$26,322.17 on account of Company B’s tax liability.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Rademaker & Everhart has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
These are settled reasons for judgment that were delivered ex tempore on 9 September 2021. Grammatical and literal errors have been corrected from the transcript for comprehension and legal references have been included.
The Court is asked to make interim orders on the following matters:
(a)Firstly, the future parenting arrangements for the two children: X born in 2014, aged 7 and Y born in 2018, aged 2. The orders sought include parental responsibility, the time the children should spend with the father and communication orders.
(b)With respect to property:
(i)Whether I should make an order releasing the sum of $285,061.40 from a controlled monies account to pay liabilities assessed by the Australian Tax Office; and
(ii)On what terms should the motor vehicle 1 be transferred to the mother.
(c)Child support and specifically, whether a departure order should be made and, in doing so, whether the Administrative Appeals Tribunal (AAT) proceedings be stayed.
The child support departure order was included in the Amended Response filed by the Respondent mother on 19 August 2021. Having heard submissions from the parties, I declined to deal with that aspect of the mother’s response. Her application has been stood over until the next mention date to allow an appeal before the AAT to be concluded and for her to consider how she intends to proceed.
BACKGROUND
The husband, Mr Rademaker was born in 1983 and is 38 years old.
The wife, Ms Everhart was born on in 1983 and is 38 years old.
The parties commenced a relationship in 2005 and married in 2012.
The child X was born in 2014, and X is now seven years and three months old.
Between 2015 and 2016, the husband was unemployed and he alleges that during that period of time he was the primary carer for X.
The wife gave birth to the parties’ child Z in 2016. Z was stillborn.
The parties’ next child, Y was born in 2018 and he is now two years and 10 months old.
In 2019 the parties separated and the husband moved out of the matrimonial home. In 2020 the husband moved overseas and worked in the United Kingdom and Country C as a professional for a few months, and then, in April 2020, the husband alleges that he was retrenched and did not work for a significant period of time.
In 2020 the parties entered into a parenting plan which effectively allowed X to spend Wednesday afternoon and one overnight each fortnight with the father, with an additional overnight at the mother’s discretion, and Saturday and Sunday time for both children with the father. The father alleges that after the parenting plan was signed, the mother refused to enter into any further discussions or agreements about extending his time with the children.
On 13 November 2020 the husband filed an Initiating Application and accompanying documentation.
On 21 January 2020 the former matrimonial home at D Street, Suburb E was sold, and the proceeds of sale in the net sum of around $2.2 million were placed in a controlled monies account.
The wife filed her Response and accompanying material on 21 January 2021 and the matter first came before me on 15 February 2021. On that date, the matter was adjourned until April, and the parties were ordered to attend a Child Dispute Conference (CDC). The CDC took place on 16 March 2021, and we are assisted by a Memorandum dated 17 March 2021.
When the matter came back to Court on 8 April 2021, further directions were made, including for the disclosure of assets, and the matter was adjourned until 12 July 2021. The parties attended mediation but were unable to reach agreement. When the matter came back before me on 12 July 2021, the matter was listed for interim hearing with directions as to the filing of material.
On 26 July 2021 the husband signed a contract with his new employer which requires him to work overseas as a fly-in, fly-out (FIFO) worker for a period of six months. The father left Australia in 2021. I believe the father was working in Country C.
On 19 August 2021, the husband filed an Amended Application in a Case and a supporting Affidavit and sought orders in light of his new employment arrangements. The mother also filed a Response and supporting Affidavit at that time, and ultimately the matter was adjourned until 2 September 2021.
PROPOSALS AND DOCUMENTS RELIED ON
The father filed a Case Outline document, which was marked Exhibit 1. It includes a very comprehensive minute of order.
By way of summary he seeks orders for parenting and they are complicated because they are divided between the children and when he is in FIFO employment or not:
Minute of orders sought by the Husband/Father
Parenting
1.The Applicant (“Father”) and Respondent (“Mother) have equal shared parental responsibility for the children X born in 2014 and Y born in 2018 (‘the children’).
2.The Mother shall be responsible for the daily care, welfare and development of the children when they are spending time with her;
3.The Father shall be responsible for the daily care, welfare and development of the children when they are spending time with him;
4.The Mother and Father are to consult each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
4.1 Each shall inform the other parent about the decision to be made;
4.2 Each will consult with each other; and
4.3 They shall make a genuine effort to come to a joint decision.
5.The children shall live with the Mother.
X care arrangements with the Father
When the Father is contracted in FIFO employment
6.From the date of this Order, unless otherwise agreed by the parties in writing, X shall spend a total of 14 days and nights per month with the Father upon his return to Sydney, with days and nights to be agreed between the parties, and communicated to the Parenting Coordinator not less than 48 hours before the Father’s return to Sydney, and if not agreed as follows:
6.1 The first 7 consecutive days and nights commencing from the day after he arrives back in Sydney (or leaves Covid19 quarantine);
6.2 On the 8th day, the Father will deliver X to the Mother at 9.30am, if on a weekend or if the 8th day is a school day, then the Father will drop X at school.
6.3 For a further 7 consecutive nights commencing from the 15th day from the day after his return to Sydney (or release from covid quarantine) with this schedule continuing until the Father leaves Sydney for his next work assignment.
6.4 Should X not spend 14 nights a month with the Father in accordance with the above schedule, any missed nights will be offered by the Mother as make up time and will carry forward to the following school holiday period for the Father to elect such time.
6.5 The parties will work together with the Parenting Coordinator in order to implement the arrangement prescribed in this Order in an amicable manner and the parenting Coordinator will facilitate this process and the Father is to provide both the Mother and the Parenting Coordinator at least 48 hours’ notice of his departure from Sydney for his next work assignment.
When the Father is not contracted in FIFO Employment
7.Unless otherwise agreed by the parties in writing, X shall spend 5 nights a fortnight during school terms and seven (7) consecutive nights in the Term 3 (September/October 2021) school holidays with the Father, at times as agreed between the parents and failing agreement, as follows:
(5 nights a fortnight)
7.1 In week 1 from after school Thursday (or 3pm if not a school day) until school drop off on Monday morning (or 9.00am if not a school day);
7.2 In week 2 from after school Wednesday (or 3pm if not a school day) until school drop off on Thursday morning (or 9.00am if not a school day);
School Holidays
7.3 For the second full week of the 2021 Term 3 school holiday period, being Monday 9.00am until the following Monday at 9.00am; and
7.4 For 50% of the 2021 term 4 long summer holidays, as agreed by the parties and failing agreement, the father will spend weeks 1, 3 and 5 from Monday 9.00am until the following Monday at 9.00am in each of these weeks
7.5 For 50% of the (2022 Term 1-Term 3) school holiday periods with the Father having the 1st full week during the Term 1 school holiday period, the 2nd full week of the Term 2 school holiday period and the 1st full week of the Term 3 school holiday period.
Y’s care arrangements with the Father
When the Father is contracted in FIFO employment
8.From the date of this Order, unless otherwise agreed by the parties in writing, X shall spend a total of 14 days and 4 nights per month with the Father upon his return to Sydney, with the days and nights to be agreed between the parties, and communicated to the parenting Coordinator not less than 48 hours before the Father’s return to Sydney, and if not agreed as follows:
8.1 The first 7 consecutive days and 2 nights commencing from the day after he arrives back in Sydney (or leaves Covid19 quarantine); from 9.30am until 4.00pm on Monday and Tuesday, from 9.30am to7.45pm on Wednesday and Thursday and from 9.30am Friday until 4.00pm Sunday.
8.2 On the 8th day, the Father will deliver Y to the Mother at 9.30am, if on a weekend or if the 8th day is a daycare day, then the Father will drop Y at daycare.
8.3 A further 7 consecutive days and 2 nights from the 15th night from the day after his return to Sydney (or leaves covid quarantine) with such times as provided for in Order 8.1 with this schedule continuing until the Father leaves Sydney for his next work assignment.
8.4 Should Y not spend 14 days and 2 nights a month with the Father in accordance with the above schedule, any missed time will be offered by the Mother as make up time and will carry forward to the following school holiday period for the Father to elect.
8.5 For the purposes of Order 8.1 and 8.3 the Mother will remove Y from Daycare on Wednesday, Thursday and Friday and the Father will meet the costs associated with retaining Y’s spot at Daycare on these days while Y is in the Father’s care.
8.6 The parties will work together with the Parenting Coordinator in order to implement the arrangement prescribed in this Order in an amicable manner and the parenting Coordinator will facilitate this process and the Father is to provide both the Mother and the Parenting Coordinator at least 48 hours’ notice of his departure from Sydney for his next work assignment.
When the Father is not contracted in FIFO Employment
9.From the date of this Order, unless otherwise agreed by the parties in writing, Y will spend 2 nights a fortnight and daytime care with the Father during school term and holiday periods as agreed between the parents and failing agreement as follows:
9.1 In week 1 on Wednesday from 9.00am until Wednesday at 7.45pm and on Saturday from 10.00am and overnight until Sunday at 7.45pm;
9.2 In week 2, on Wednesday from 8.00am and overnight until 8.00am on Thursday morning where the Father will drop Y off at Daycare and on Friday from 8.00am until 7.45pm;
9.3 For the purposes of Order 9.1 and 9.2 the Mother will remove Y from Daycare on Wednesday’s and every 2nd Friday and the father will meet the costs associated with retaining Y’s spot at Daycare on these days while Y is in the Father’s care.
9.4 Y’s time with the father will increase to 3 nights a fortnight from the commencement of school term 2022 with this additional night being the Friday night in week 1 when X is staying with the Father.
Special Days
10.Unless otherwise agreed by the parties in writing, The children will spend time with the parents on the following special days as follows with orders 5 - 9 suspended:
10.1 With the Mother from 9:00am until 7.45pm on Mother’s Day.
10.2 With the Father from 9:00am until 7.45pm on Father’s Day.
10.3With the parent that they are not otherwise living with on each of the children’s birthdays from 2:00pm (or otherwise after school/day care) until 7.45pm.
10.4With the Father on the Father’s Birthday from 2:00pm (or otherwise after school/day care) until 7.45pm if the children are not already in his care.
10.5With the Mother on the Mother’s Birthday from 2:00pm (or otherwise after school/day care) until 7.45pm if the children are not already in her care.
10.6For the purposes of 2021 Christmas Eve, Christmas Day and Boxing Day the children shall live with the parents as agreed and failing agreement as follows:
10.7From 11:00am Christmas Eve until 11:00am Christmas Day with the Mother (and the Mother agrees to return the children to the Father’s residence at the conclusion of her time), and from 11:00am Christmas Day until 5.00pm Boxing day with the Father and the Father agrees to return the children to the Mother’s residence at the conclusion of his time with the children.
Communication
11.The children shall be at liberty to communicate with the parent with whom they are not living at all reasonable times and in facilitation of these communications the following shall apply:
11.1The Father shall be permitted to contact the children at any time agreed with the Mother, but failing Agreement on Tuesday, Friday and Sunday (when the children are not spending time with him) between 5.00pm and 5.30pm by facetime or by telephone to the Mother’s telephone or other electronic device.
11.2The Mother will facilitate the call/facetime communication and make the children available to accept the communication with the Father;
11.3The Mother will allow the children to communicate with the Father privately and without interference or interruption from the Mother or her family;
11.4Should the Father be outside Sydney for his employment the communication schedule as provided for in this Order shall increase by an additional communication each week to be agreed between the parties and if not agreed from 5.00pm – 5.30pm on Thursdays.
11.5The Father shall communicate to the Mother and the Parenting Coordinator at least 48 hours in advance (where he receives notice from his employer) of both the departure dates from Sydney to his employment location and return dates from his employment location so that the above time with arrangements with the children specified in order 6 and 8 can be facilitated.
11.6The parties will work together with the Parenting Coordinator in order to implement the arrangement prescribed in this Order 11 and the parenting Coordinator will be added to the parties Divvito App.
12. Unless otherwise agreed in writing, when the children are in the Father’s care, the Father may prioritise the children’s attendance at any family events organised during his time with the children in accordance with these Orders and will facilitate the children’s attendance at any extracurricular and sporting activities where these activities do not clash with the abovementioned family events.
13.The Mother shall provide the Father the details of the children’s extracurricular and sporting activity schedule within 7 days of the commencement of each Term by email as well as written notice of any changes to same within forty eight hours of any change except in the event of illness or emergency.
Changeover
14.That changeover should occur at school or day-care but when this is not possible, shall occur as agreed between the parents but failing agreement:
14.1The Mother will deliver X and Y to the Father’s residence at the beginning of his time with the children and father will return X and Y to the Mother’s residence at the end of his time with the children.
14.2The purpose of Order 14 is for the children’s collection and drop off’s to be shared equally between the parties.
Children’s Health
15. That each party will notify the other immediately and, in any event, no later than within four (4) hours of any Illness or injury necessitating urgent medical treatment whilst the children are in their respective care.
16. That each party shall inform the other of any illness or injury suffered by the children requiring hospitalisation or prescription medication and in the event of the latter each parent shall ensure that the children is provided with such medication and that it is administered to her in accordance with the directions of the treating practitioner.
17. That should either party make a medical appointment for the child(ren) with a General Practitioner or medical specialist they shall within 48 hours of the appointment advise the other parent by email of the appointment details, so the other parent may attend.
18. That both parties shall authorise by these orders any treating general practitioner and/or medical specialist to provide any medical summary or report by email to both parents.
19.That each party shall advise the other party by email about any information regarding the health, emotional wellbeing during the time the children is in their care including medication prescribed and/or taken, and changes in behaviours of the children.
General
20. That each party shall notify the other in writing of any change in address and/or telephone number within 48 hours of any such change.
21. That the parties update each other on the children’s daily activities through the Divvito Parenting App on a weekly basis or otherwise any time there is a change to the children’s schedule. The daily schedule will be updated on the shared messaging system or one of a similar nature in the future consistent with changes in technology.
22.Each party is restrained from exposing the children to family violence in any form.
23.Each party is restrained from exposing the children to abusive arguments between the parties or a third party when the children are present or discussing the current Federal Circuit Court proceedings with either or both children.
24.Each party is restrained from making critical or derogatory remarks about each other or members of each other’s family in the presence of the children or on social media or at all and the parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their family in the children’s presence or on social media.
25.That unless in the case of an emergency, the Mother and Father be always restrained from approaching within 2 metres of:
25.1 the other party;
25.2 the front door of each other’s residence;
25.3 other residences where the parties may from time to time reside;
25.4 the other party’s motor vehicle;
26. The Mother agrees when collecting and/or dropping off the children in accordance with these orders at the Father’s Suburb F residence she will only do so at the rear of the apartment complex in the safe zone and not at the front of the complex.
27.Unless otherwise agreed in writing by the parties, the parties will communicate only about the children via the Divvito parenting App except in the case of emergency or illness where SMS and telephone communication is acceptable.
28. That within 7 days from the date of this Order, the parties do all acts and things to jointly appoint Ms G as Parenting Coordinator through the organisation ‘Parenting after Separation’ to support and provide case management assistance to the parties in relation to the implementation of these orders and each party will each meet their respective costs of this appointment.
29. That within 7 days from the date of this Order, the Mother will do all acts and things to enrol herself in a Parenting After Separation (PAS) course and Anger Management Course and will provide to the Father’s solicitor a copy of her completed enrolment application in each course and within 7 days of the completion of the PAS and Anger Management course, a copy of the certificate of completion.
30.Should either parent not be able to fulfil their allocated time with the children for a period of not less than 2 hours, then the other party shall be given first right of refusal to care for the children during this time.
31.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property
2020 Tax Debts
32. That the parties do all acts and things to instruct Newnham’s solicitors to pay directly to the Australian Taxation Office from the parties Controlled Monies Account (A/C# …98) the following income tax debts for the year ended 30 June 2020 on or before 30 September 2021:
32.1An amount of $262,030.70 in full satisfaction of Mr Rademaker’s personal tax assessment liability for the year ended 30 June 2020; and
32.2An amount of $23,030.70 in full satisfaction of Mr Rademaker’s Company, Company B, income tax liability for the year ended 30 June 2020.
33. Unless otherwise agreed by the parties, for the purposes of determining the ‘amount and classification’ of the Taxation debts provided in Order 32 above, the parties will do all acts and things to jointly instruct an independent forensic accountant to prepare a report on the Applicant’s personal income and the Financial Accounts of his company and movement of funds between company and personal bank accounts giving rise to the 2020 tax debts as assessed.
33.1For the purpose of Order 33, unless otherwise agreed in writing by the parties, the wife will nominate 3 Forensic Accounting firms within 14 days of this order, and provide CV’s and costs associated to the husband’s solicitor and the husband will select one and that firm will be jointly instructed by the parties.
33.2The cost of the forensic report will be equally shared between the parties.
34.That the Respondent pay the Applicant’s Costs of and incidental to this Application in a Case.
Notation
A. It is noted that the wife does not accept the amount of the Applicant’s tax liabilities referred to in Order 32 above or the classification of these liabilities, and should the Court not be able to determine same at Interim Hearing these matters will be determined by the Court at Final hearing with the Assistance of the joint Forensic Accounting report provided in Order 33.
(As per original)
In support of those orders the father relies on the following documents:
(a)Amended Application in a Case filed 19 August 2021;
(b)Affidavit of Mr Rademaker filed 19 August 2021;
(c)Affidavit of the accountant Ms G filed 8 July 2021;
(d)Financial Statement of Mr Rademaker filed 19 August 2021;
(e)Subpoena material produced by Ms K;
(f)Child Dispute Conference Memorandum, Family Consultant Ms L dated 16 March 2021; and
(g)Tender bundle for the Husband relating to parenting, relating to Tax Debt – including tax returns/assessments.
The mother filed a Case Outline document as well which was marked Exhibit 2. The orders she seeks are as follows:
Orders sought by the Respondent Mother
1.That the Father’s Amended Interim Application filed 19 August 2021 be dismissed.
2.Pending further Order, the children, X, born in 2014 and Y, born in 2018, (“the children”) live with the Mother.
3.Pending further order and whilst the Father is overseas or interstate the children shall spend time with the Father by telephone, WhatsApp Video call or Facetime on Monday, Tuesday and Saturday between the hours of 5:30pm and 6:00pm Sydney time for a period not exceeding 10 minutes.
4.Pending further order and upon the Father returning to reside in the Sydney Metropolitan Area and after completing all quarantine obligations imposed by the New South Wales State Government from time to time, the children shall spend time with the Father as follows:
4.1X shall spend time with the Father on each alternate weekend from after school Friday, or 3.00pm if Friday is not a school day, until 4.00pm Sunday.
4.2Y shall spend time with the Father on the same alternate weekend, with X, as follows:
4.2.1From after day care on Friday, or if Y is not attending day care, at 3.00pm until 7:30pm Friday;
4.2.2From 10.00am until 4.00pm Saturday;
4.2.3From 10.00am until 4.00pm Sunday
4.3Both children shall spend time with the Father each Wednesday from after school/day-care, or if the children are not in school or day-care, from 3.00pm until 7.00pm.
4.4Both children shall spend time with the Father by telephone, WhatsApp Video call or FaceTime on Tuesday and Thursday between the hours of 7.00pm and 7.30pm for a period not exceeding 10 minutes.
4.5Such other times as agreed between the parties in writing.
5.For the purposes of Order 4, the father shall collect the children at the commencement of each period of time and deliver the children to the Mother at her home at the conclusion of each period of time.
6. X shall spend time with the Mother by telephone, WhatsApp Video call or FaceTime on the Saturday that X is with the Father, between 7.00pm and 7.30pm for a period not exceeding ten minutes.
7.The Father shall return the black communication book to the Mother within 48 hours of these orders being made.
8.That within 48 hours of the date of these Orders, the Husband shall do all acts and things and sign all documents necessary to transfer to the Wife his unencumbered interest in motor vehicle 1 being registration [omitted].
9.That both parties do all acts and things necessary to authorise Newnhams Solicitors Pty Ltd to pay to the Australian Taxation Office, from funds held in controlled monies, the amount of $133,533.40 on account of the Husband’s personal tax liability and the amount of $23,156.41 on account of Company B’s tax liability.
10.That the Husband be restrained from taking any further part in the Review Proceedings Number [omitted] commenced by him in the Administrative Appeals Tribunal, other than for the purpose of having those proceedings withdrawn and dismissed.
11.That pending further order, and pursuant to Section 117 of the Child Support (Assessment) Act, 1989, there be a departure from the administrative assessment of child support payable by the Father to the Mother for the children, X born in 2014 and Y born in 2018 as follows:
11.1For the period from the date of this order, the annual rate of child support be set at the value of $16,259 per child and,
11.2The annual rate of child support payable shall increase from the anniversary of the date of these Orders in each year in accordance with variations in the Consumer Price Index for Sydney.
12.That the Father pay the Mother’s costs of and incidental to this application.
(As per the original)
In support of the orders the mother relies on the following documents:
(a)Response to an Application in a Case filed 19 August 2021;
(b)Affidavit of X filed 19 August 2021;
(c)Notice of Risk filed by the mother 20 January 2021;
(d)Notice of Risk filed by the father 5 November 2020;
(e)Financial Statement filed by the wife 19 August 2021; and
(f)Affidavit of the husband filed 6 April 2021 answering specific questions.
The Child Inclusive Memorandum was prepared for the Court by Family Consultant Ms L on 16 March 2021, and it has been marked Exhibit 4 in these proceedings.
The parties jointly tendered a range of documents which were marked as exhibits:
Exhibit No: Tendered by Party/Person: Description of Exhibit: 1 Court AF’s Case Outline document filed 1/09/2021 2 Court RM’s Case Outline document filed 1/09/2021 3 Index to Consolidated Tender Bundle Exhibit numbers:
1, 2 (Notice of Risk), 3 (pages 32-24 only) 5, 6, 8, 9, 19, 21, 24, 25, 26-30 (source documents) 31-374 Child Dispute Conference Memorandum dated 17 March 2021 5 Index to Consolidated Tender Bundle Exhibit numbers: 39, 40 (pp 327-329), 41 (p330), 42 (p331), 43 (pp 345, 351-354, 357, 358, 361), 44 (pp 363-364), Tax debt exhibits: 48-55 (pp 411-483)
In terms of the process that was adopted, the parties were legally represented, and cross-examination did not occur.
All parties provided written and oral submissions. Each of those submissions has been properly considered in reaching the determination, but I am not required to specifically address or respond to them individually.[1]
[1] Baghti & Baghti [2015] FamCAFC 71.
INTERIM HEARING PROCESS
As the Full Court has observed, the interim hearing process is a truncated one in which the Court should not make findings based on contested facts, but rather look to agreed facts and issues not in dispute, while still following the legislative pathway.[2]
[2] see Salah and Salah (2016) FLC 93-713; MRR v GR (2010) 240 CLR 461.
Pursuant to section 69ZL(1) of the Family Law Act 1975 (Cth) (“the Act”) these reasons for judgment have been delivered in a short form.
PARENTING
I will first turn to the parenting issues and it is necessary to provide some overview of the agreed and contested facts.
The mother asserts she was the primary carer for the children during the relationship. The father contends that for some periods he was.
The father worked as a FIFO worker in international locations during the relationship and was often absent for extended periods of time.
After separation, the father was retrenched and remained in Australia between 2020 and 2021, and the parties have been following the parenting plan referred to earlier, which was entered into on 2 May 2020.
Just of some note in relation to the parenting plan are the matters deposed in paragraph 28 to 32 of the father’s affidavit. He says that the parenting arrangements were implemented in May 2020 and only reluctantly accepted by him. He says his access to the children was threatened unless the plan was signed. That allegation is contained in paragraph 29 of his affidavit.
He also argues that over the last 18 months there have been numerous discussions, mediations and negotiations focused on a variation of that parenting plan. He says that, notwithstanding the two mediations held by Families M, it did not result in any material increase in time with his children. It is a source of great contention for him and I do not think that is an issue in dispute.
The Children
X is attending Primary School N in Suburb E and she is in year 1.
Y is attending O Day Care at Suburb P.
The mother has filed a substantial affidavit where she sets out some important and pertinent information regarding the children and their needs.
Specifically, in relation to Y, she says that he was born with a birth defect. He underwent reconstructive surgery in 2019, when he was only 13 months old, at Hospital Q at Suburb R.
She says he has had multiple severe food allergies and is anaphylactic to dairy in all forms, egg, sesame in all forms, and has severe allergies to asparagus and barramundi. He has been under the care of a paediatric immunologist for this condition. As a result, Y’s diet is challenging, given the restrictive food groups that he eats.
She says that in 2020 he was incorrectly administered dairy milk at day care, which resulted in his educators administering his EpiPen. He was rushed by ambulance to the hospital where he suffered a severe secondary reaction approximately 90 minutes later. He has now, fortunately, recovered.
The mother deposes of difficulties she has working with the father on issues arising from Y’s medical needs. She says at [45] of her affidavit:
I find it difficult to co-manage Y’s medical and dietary requirements with the husband, who minimises and ridicules my management of Y’s special needs. I also hold concerns that the husband is not capable of implementing medical advice following Y’s food challenges.
At [48], she deposes that in 2021 Y became unwell and was vomiting all night. She alleges that he was later delivered to the father to spend time with him, and she contacted the father some time during that evening to find out what food he tolerated. The husband advised her of some food and ended with words, “basically, he’s not sick.” This caused her to be somewhat concerned about his appropriate response to allergies, and, indeed, on in 2021 Y was again admitted to the ER at the Hospital S, following bouts of vomiting.
The mother also alleges that Y can be quite unsettled and clingy at changeovers. He often cries, and the parties have exchanged an amount of messages in relation to the changeovers and the care of Y.
In relation to X, the mother says that she is progressing well at school and is bright, sensitive, mature and intuitive. She also says she is somewhat impressionable. At the age of three, X developed chronic constipation and has been under the care of a paediatric gastroenterologist from the age of 15 months to 4.5 years. However, the mother says her condition was later described as being behavioural in nature.
She says that the condition did resolve itself until X commenced having overnight time with the father in 2020 and became constipated. As a result of that, some medicines are administered. The mother says that she took X to consult with Dr U in 2020, after noticing changes in her behaviour, including the constipation, as well as nightwalking and her having difficulty sleeping.
The mother alleges that X can be emotional in the lead-up to time with her father and often is returned to her care saying that she is hungry or complaining about the food that she eats. She also says that upon return from the father’s care, X’s behaviour is often out of character, defiant, and she generally finds some difficulty settling her and meeting her emotional needs.
The father, it should be said, disagrees with the mother’s observations about X and Y. He says that he has observed no emotional issues or anxiety by X when staying with him overnight, and that she enjoys spending time with him.
He says he also thinks Y is ready to be introduced to overnight time because he will be turning three in 2021. He says that he and Y have a close bond, and he is aware and is able to provide for his special dietary requirements. Indeed, he recently visited Dr T, his specialist, to speak with him about those requirements.
He also says he has been caring for Y on his own without issues for more than 14 months. The father enjoys spending time with the children, and at paragraph 47 he sets out some of the activities that they have enjoyed over the past 12 months.
Issues in dispute
The issues in dispute and that require judicial determination appear to be as follows:
(a)shared parental responsibility;
(b)what time the children should spend with their father when he is employed on a FIFO basis;
(c)what time the children should spend with their father when he is not employed on a FIFO basis;
(d)whether overnight time between the father and Y is appropriate; and
(e)communication orders.
Parental Responsibility
As the Court is being asked to make orders as to parenting, the first question to be determined is whether the presumption in section 61DA(1) of the Act applies – that is, is it in the best interests of the children that the parents have equal shared parental responsibility, and whether that presumption is rebutted.
It can be rebutted if there are reasonable grounds to believe a parent has engaged in abuse of a child or family violence, or the proceedings are interim and the Court considers that it would not be appropriate for the presumption to be applied.
If the presumption is found to apply, it may further be rebutted by evidence that equal shared parental responsibility is not in the best interests of the children.
The Family Consultant observed that the communication between the parents is challenging. At the time of the report, she observed that the parents agreed to share parental responsibility, and did not therefore comment on the issue further.
The mother now seeks an order for sole parental responsibility.
In high-conflict situations, equal shared parental responsibility, which requires parents to be able to engage in joint decision-making and compromise in a way which is in the children’s best interests, is often not recommended.
I have taken notice of the poor communication displayed by both parents in the communications they have annexed and tendered, and it bears their poor communication skills out. It is perhaps further highlighted by the fact that the father asked me to appoint a parenting coordinator to resolve any impasse that may arise.
The mother relies on a Notice of Risk filed on 13 November 2020. At paragraphs 12 to 24 of her Affidavit, she sets out incidents that, she says, demonstrate coercive and controlling behaviour by the father. Her allegations extend to the control he had over the parties’ finances. The father denies this description and categorisation of his conduct. The father makes some allegations against the mother as well. Ultimately, each told the Family Consultant that they have not caused harm to each other or the children.
At this stage, however, and pending the opportunity to fully test the evidence and make findings of fact, I am not satisfied that the allegations made allow the presumption of equal shared parental responsibility to be rebutted.
Flowing from that, I am still required to consider certain things, including whether the children should spend equal time or substantial and significant time with each parent. This essentially is a critical issue.
Ultimately, I must consider what orders are in the children’s best interests, and whether those arrangements are reasonably practicable.
The future parenting arrangements for the children
The father’s submissions
In terms of the future parenting arrangements, the father says in relation to X that when he is working as a FIFO worker, he seeks the commencement of a shared care arrangement for X. He proposes she comes into his care for the first seven days that he is out of quarantine, with her care alternating between the parties each seven-night period until he leaves Sydney on his next work assignment. In addition, if he does not spend 14 nights each month with X, then he seeks make up time.
When not contracted in FIFO employment, he proposes X spend five nights a fortnight with him and half of the school holidays in a seven-night block.
In terms of Y, the father proposes that Y spend a total of 14 days and four nights per month with him when contracted to FIFO employment.
When he is not contracted in FIFO employment, two nights per fortnight and daytime care on Wednesday and Saturday.
The mother’s submissions
The mother proposes that when the father is in Sydney, and upon completing quarantine requirements, he spend time with X each alternate weekend from after school Friday until 4pm Sunday. She proposes that Y join X on the same weekend, but not stay overnight.
In addition, she proposes that the children spend time with their father each Wednesday from after school until 7pm.
The independent evidence
The Family Consultant was not aware of the father’s plans to resume FIFO work. She made two relevant observations at [30] and [33] of the Memorandum:
30.In relation to Mr Rademaker’s proposal, his proposal allows for his relationship with the children to develop further. However, X may emotionally struggle with an equal time arrangement and it may be disruptive to her weekly routine.
33.The parents agree that Y could start spending some overnight time with Mr Rademaker when Y is three years of age.
The Law
The principles governing the determination of competing parenting applications is set out in Part VII of the Act.
When making a parenting order, the Court must consider what is in the best interests of the children pursuant to section 60CA.
The children’s best interests are determined by a consideration of the objects and principles of section 60B, and the primary and additional considerations in section 60CC.
Section 60CC(2A) of the Act provides that, in applying these considerations, the Court must place greater weight on the need to protect the children from harm than on the benefit to the children of having a meaningful relationship with their parents.
Section 60CC(3) sets out some additional considerations when deciding what orders are in children’s best interests. I have referred to those that are relevant.
I should note that the Act specifically does encourage parents to enter into parenting plans. Parenting plans are intended to provide a simple and informal process for formalising agreements about parenting.
The mother argues there is a parenting agreement between the parties, and, in the current circumstances, its terms should not be departed from. The parties entered into the parenting agreement after lengthy negotiations which involved a number of professionals. I do, however, note the father’s assertion that it never represented what he was seeking. The fact that the parties are before the Court would reflect this.
Nevertheless, the Court is to have regard to the terms of the most recent parenting plan entered into between the parents, if doing so would be in the children’s best interests.
Ultimately, though, the Court will make orders that it considers best promote the welfare of the children, even if such orders lead to what might be regarded as an injustice between the parties or a departure from the current parenting agreement.
Conclusion
The Court must balance the benefit of the children having a meaningful relationship with the father with the primary consideration of protecting the children from harm, and that includes being subjected or exposed to abuse, neglect or family violence.
Both parties accepted that they have no concerns about the physical safety of the children in each other’s care.
Equally, they concede that the children have a positive relationship with each other and that they have a close and loving relationship with the children.
The father has resumed work as a FIFO worker. While he proposes enjoying an equal or at least substantial and significant time arrangement with X when he is not away, this, in my view, is neither reasonably practicable, nor in her best interests.
There is enough evidence before the Court to indicate that X has struggled going between households. While the parties have been working with her and other professionals to support her through an increase in time, the father was able to provide no evidence that would satisfy me that the arrangement he proposed was in X’s best interests. Nor are they consistent with the views she is expressing to those around her.
Whilst I accept the father is disappointed that he is not spending more time with the children and is frustrated by what he perceives are unnecessary roadblocks in his way, his decision to resume FIFO work does not allow him to build up a consistent arrangement with the children.
On this decision, his counsel argued, he was not putting work first, but, as he had been unemployed for a significant period of time, he was taking a responsible decision so that he could earn an income to maintain the children.
I observe that the mother says she has received no child support since the father departed Australia. She alleges she has a child support debt of $16,088, with proceedings before the AAT regarding the past child support assessment. It would seem his ongoing financial support for the children is a contentious matter that may require judicial determination on a final basis.
While the father is highly critical of the mother, her conduct towards him and his efforts to obtain more time with the children, he gives no evidence about his new role and how this impacts on his care of the children.
The mother raised some genuine concerns about X and Y, and the need to transition to new arrangements with care. There was no acknowledgement of these issues by the father. He made no proposal for lead-in time. Indeed, the proposal was largely premised on it being in the children’s best interests solely on the basis that it allows him to spend significant time with them when he is in Sydney. He could point me to no evidence before the Court that supported his assertion that it would be in the children’s best interests.
The Court was left to piece together what the FIFO arrangements proposed by the father would look like in reality. This is a difficult task because there was no roster or timetable. On his counsel’s suggestion, he was away for six weeks then back in Sydney, but in quarantine for two weeks, then possibly available to spend the next four weeks with the children. There was no evidence about the how the children would adjust, how the parties would communicate about their activities and commitments, nor consideration for how this might impact on their routines.
In circumstances where the father is unable to address those matters, I cannot make a finding that the father’s parenting proposal is in the children’s best interests. On the other hand, the current arrangements have worked well and the children are familiar with them.
Evaluating the above-discussed considerations, I have concluded that it would be in the best interests of the children to make the following orders.
The current arrangements for the children will continue whilst the father is in Sydney. When he is not able to spend time with them physically, an order will be made to allow him to speak with them regularly on electronic mediums.
The parties advised the Family Consultant that they agreed that Y can commence overnight time with the father when he is three years old. The mother changed her position on this when she filed her Amended Response. While I appreciate her stated concern about the father’s capacity, she is familiar with his living arrangements when he is Sydney. Y will be supported by the presence of his sister, and, given the high conflict between the parties, overnight time will have the advantage of reducing the number of changeovers. This will mean that Y is exposed to less conflict between the parties, and can settle into one arrangement each fortnight once he is three. I will make an order to reflect this so that from November he will stay overnight with the father at the same time as his sister.
There has been high conflict between the parties about changeovers. It seems that an issue has arisen because the father’s residence is difficult to access and it requires the mother to park illegally or park down the street and walk around 15 minutes with the children. This is impractical, and is leading to further conflict between the parties. It cannot be a positive way for the children to start or finish their time with their father.
For the interim period, the father will only be spending time with the children during periods when he is at home and not working. The mother will have long periods of sole parenting during his absence. In the circumstances, and on an interim basis, I will make an order requiring the father to take responsibility for the changeovers.
The father seeks orders appointing a parenting coordinator. He has gone to some trouble to make inquiries of an appropriate service and make a recommendation of a suitably qualified person to fill the role. The mother opposes the order. The father provided no details of the qualifications of the person. His counsel was unable to direct me to where the source of the Court’s power lied. In those circumstances, and without information of the qualifications of the person proposed, I decline to make such an order.
At the conclusion of submissions, counsel for the mother indicated that her client consented to me making some orders sought by the father. These related mainly to communication and the conduct of the parties. I have accordingly incorporated the husband’s proposed orders 15, 16, 18, 19, 20, 21, 24, 27, and order 17 with a small change as proposed by counsel for the mother. There was also general agreement about special days, and these have been incorporated into the orders with minor alteration so the finishing time accords with the current arrangements.
PROPERTY
I will now turn to the property matters.
The mother seeks an order that within 48 hours of the date of these orders the husband do all acts and things, and sign all documents necessary to transfer to her his unencumbered interest in vehicle 1, being registration[omitted].
The parties each also seek an order to be made about a tax liability to the Australian Tax Office. It has arisen from a company which the husband is the sole director of, Company B, and from the husband’s personal tax liability.
The tax liability of $285,187 is due and payable to the ATO on 30 September 2021. It is comprised of:
(a)a personal tax liability of $262,030.75 and
(b)Company B, $26,322.17.
The husband relies on an affidavit of his accountant Ms J sworn on 7 July 2021, which sets out how and why the tax liability arose.
The tax liability has arisen largely because the husband instructed his accountant that the full director’s loan of $746,250 should be repaid and accounted for in the 2020 financial year.
The husband argued that the tax liability needs to be addressed otherwise, significant penalties will accrue.
The accountant argues that there were two benefits from the accounting method adopted: one is that it allowed the loan to be realised for the purposes of the financial settlement between the parties, and, secondly, the husband was not working throughout the financial year, so was on a marginal tax rate.
It should be noted at this point that there has been significant disclosure and communication on this issue, and great contention between the parties. The wife disputes the validity of the loan agreements. She alleges significant discrepancies in the tax returns and company accounts.
The parties sold the former matrimonial home in Suburb E in 2021, and an amount of $2,221,776.21 is held in a controlled monies account in trust. The husband seeks that the tax liability be paid from this fund. Evidence on the issue will need to be tested at final hearing and I can make no findings of fact.
The husband seeks the following orders:
Property
2020 Tax Debts
32. That the parties do all acts and things to instruct Newnham’s solicitors to pay directly to the Australian Taxation Office from the parties Controlled Monies Account the following income tax debts for the year ended 30 June 2020 on or before 30 September 2021:
32.1An amount of $262,030.70 in full satisfaction of Mr Rademaker’s personal tax assessment liability for the year ended 30 June 2020; and
32.2An amount of $23,030.70 in full satisfaction of Mr Rademaker’s Company B, income tax liability for the year ended 30 June 2020.
33. Unless otherwise agreed by the parties, for the purposes of determining the ‘amount and classification’ of the Taxation debts provided in Order 32 above, the parties will do all acts and things to jointly instruct an independent forensic accountant to prepare a report on the Applicant’s personal income and the Financial Accounts of his company and movement of funds between company and personal bank accounts giving rise to the 2020 tax debts as assessed.
33.1For the purpose of Order 33, unless otherwise agreed in writing by the parties, the wife will nominate 3 Forensic Accounting firms within 14 days of this order, and provide CV’s and costs associated to the husband’s solicitor and the husband will select one and that firm will be jointly instructed by the parties.
33.2The cost of the forensic report will be equally shared between the parties.
34.That the Respondent pay the Applicant’s Costs of and incidental to this Application in a Case.
Notation
A. It is noted that the wife does not accept the amount of the Applicant’s tax liabilities referred to in Order 32 above or the classification of these liabilities, and should the Court not be able to determine same at Interim Hearing these matters will be determined by the Court at Final hearing with the Assistance of the joint Forensic Accounting report provided in Order 33.
(As per original)
The husband argues that the tax returns and affidavit of the accountant support the legitimacy of the tax liability, that the debt has been accrued during the relationship and it needs to be considered in a joint balance of the parties’ assets and liabilities.
He acknowledges that the characterisation of the tax debt is an issue, and one that needs to be determined at final hearing. He proposes I make an order for a forensic accountant to provide a report for this purpose. Meanwhile, there is in excess of $2 million in controlled monies to satisfy the debt without prejudicing the wife.
The wife sets out in her Case Outline document the orders that she seeks.
She argues she has been told different figures for the tax liability. She is prepared to consent to the sum of $133,000 being released, but only if it is treated as an interim property distribution.
The mother is most concerned that it will result in an overpayment which the husband will seek to benefit from.
She argues that he should look to other resources to repay the amount. For example, she says the husband has retained for his sole benefit and use the proceeds of sale of motor vehicle 2 in the sum of $42,500.
The husband asserts that he used $50,000 to loan a company in Country V, Company W, via the company director Mr BB, the sum of $50,000 on 25 January 2021. The husband has advised the wife he has received $25,775 in part repayment of the loan. He also has cryptocurrency he has invested in.
The wife is concerned that the payment of this sum amounts to 10 per cent of the property pool, and says every bit that comes out of the property pool will impact on her.
The Law
This matter concerns an application for an interim property distribution, and it falls under sections 79 and 80 of the Act.
The Full Court of the Family Court of Australia in the case of Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at [115] set out the principles to be followed by a Court in addressing applications for interim property orders. The Full Court held that there are two steps in considering an application for an order for partial property distribution prior to final hearing, the first step being a procedural step, the second step a substantive step.
With respect to the first step, the Full Court in Strahan commented at [132] that “the ‘overarching consideration’ is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power.”
It is also important to recognise that, while the usual section 79 considerations apply to the substantive step of the process, a detailed analysis of those considerations is not required at an interim hearing.
At an interim hearing, the Court is not be in a position to make findings and evaluate evidence. For this reason, the Court should take a conservative approach when determining whether there are likely to be sufficient resources available at final hearing to accommodate any adjustment issues.[3]
[3] Harris & Harris (1993) FLC 92-378 at 79,930 as referred to in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,646.
In Medlow & Medlow (2016) FLC 93-692 at 81,088 the Full Court confirmed that where a party seeks interim property orders, the onus is on the applicant to establish that there were sufficient assets available for the interim distribution, and that the effect of any interim order was capable of being reversed as part of the final hearing, or at least would not defeat the respondent’s property claim.
I am not required to analyse, nor be satisfied, that the released funds are being used for an appropriate or legitimate purpose.
That said, I am still required to be satisfied that it is just an equitable to make an order in the circumstances before the Court.[4]
[4] Stanford & Stanford (2012) FLC 93-518 at 86,640 – 86,642.
The tax liability
The husband has established that a legitimate tax liability exists. He has also established that it is due and payable on 30 September 2021.
The notional distributions to the husband have reduced the tax liability of the parties, pending trial. However, it is a matter for the trial judge to determine whether the husband has derived any direct benefit from the distributions, or whether it should be treated as a joint liability and taken into account in determining the parties’ assets and liabilities.
Given the legitimacy of the debt and the date it falls due to the Commonwealth of Australia, in my view, it is a compelling circumstance that justifies the Court making an interim property order.
The wife also argued that $100,000 already released was the subject of the preliminary property order, but has not been properly accounted for, or, alternatively, not properly utilised by the husband. However, as I have outlined, the position at law is that the husband may choose to spend the amount however he wishes. It does not mean that I have to disregard it, but, for the purposes of this application, I can only have regard to the assets and liabilities that the parties have deposed of, as supported by the evidence tendered.
The husband does have $36,985 standing to his credit in a bank account. In addition, he deposes $73,480 worth of cryptocurrency assets. The existence of these funds might be one reason why the wife is resisting the payment of the whole of the amount. However, no evidence was led of the husband’s ability to liquidify these assets, or the appropriateness of him being required to do so. The proceeds of sale seem to be the most obvious source of funds.
Is it just and equitable that I make such an order? Some aspects of the wife’s case seem to be that there has been inadequate financial disclosure by the husband, and his failure to properly maintain the children by way of child support. There was a concern expressed by the wife, although these words were not used, that a distribution of this nature might act to defeat her possible entitlements.
I cannot see how this is likely. From the proceeds of sale, $2,222,000 remain. The husband seeks a payment of $285,187 to the ATO, leaving an amount of $1,937,345.
The husband deposes additional property in excess of $1,000,100 although this might consist of $100,000 already distributed to the husband at its best, there does remain a pool of assets in excess of $3 million on the financial statement.
After paying out the tax liability, there still remains an amount in trust which is the equivalent of 87 per cent of that amount. It would seem just and equitable that I order for the tax liability to be paid from this source.
Given the live issues about the validity of the husband’s transactions, I will not classify it at this stage, and whether it be treated as a joint liability or otherwise will remain an issue for the trial.
The husband proposed that the parties engage a forensic accountant to prepare a report on the calculation of the tax liability and the movement of funds between the husband and the company. I will not make orders on this issue at this stage.
The transfer of the motor vehicle
The Motor vehicle 1 has been in the wife’s possession for some time, and the husband has required her to register, insure and maintain the vehicle from her own funds. She indicates she would like to sell it and purchase a car that has lower maintenance costs.
The father agrees that the car should be transferred but asks me to treat the transfer as a partial property settlement and attach a value to the motor vehicle.
I am not satisfied that there is sufficient independent evidence upon which to attach a value to the car. The property in the wife’s possession at the final hearing will be taken into account and values determined upon hearing evidence.
I will, however, make an order for the vehicle to be transferred to her.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Dated: 18 October 2021
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