REID & MOLLOY - [2017] FamCA 760

FAMILY COURT OF AUSTRALIA

REID & MOLLOY

[2017] FamCA 760

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where mother seeks to relocate to New Zealand with children – Where father opposes relocation and seeks children spend equal time with parties in Australia – Where mother’s emotional and financial circumstances will improve if relocation permitted – Where mother’s parenting capacity will improve if relocation permitted – Where it is not reasonably practicable for father to relocate also - Where relationship between father and children will deteriorate if relocation permitted – Where children will likely suffer short term grief and loss if relocation permitted – Findings that not permitting relocation is in children’s best interests – Relocation not permitted - Allegations of family violence – Where order for equal shared parental responsibility in children’s best interests – Where order for equal time is not in children’s best interests – Where orders made for children to live with mother and spend significant and substantial time with father.

FAMILY LAW – PROPERTY SETTLEMENT – Where values of property in dispute – Agreement between parties that contribution based entitlements are equal – Where amount of adjustment in relation to s90SF factors in dispute – Where father has higher earning capacity – Where mother has primary care of children – Where there is an adjustment of 20 per cent for section 90SF factors in favour of the mother – Where 70/30 division in favour of the mother is just and equitable.

FAMILY LAW – SPOUSAL MAINTENANCE – Where parties in dispute about length of time and amount of such payments – Where father does not have capacity to pay amounts sought for by mother – Where father found to have capacity and it is just and equitable to pay mother spousal maintenance of $100 per week for 12 months.

FAMILY LAW – REFERRAL OF PAPERS – Whether father’s unauthorised recordings of mother’s telephone conversations with the children ought to be referred – Where decision against referral of papers - Father ought to have had recourse to s128 of the Evidence Act 1995.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 90MT, 90SF, 90SP
Evidence Act 1995 (Cth) ss 128, 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343
T & N [2001] FMCAFam 222
Churchill & Raske [2014] FamCA 848

APPLICANT:

Mr Reid

RESPONDENT:

Ms Molloy

FILE NUMBER:

TVC

2016

DATE DELIVERED:

26 September 2017

PLACE DELIVERED:

Cairns

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

6, 7, 8 and 9 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Raeburn

SOLICITORS FOR THE APPLICANT:

Purcell Taylor Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Fellows

SOLICITORS FOR THE RESPONDENT:

Ruhl…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading REID & MOLLOY

Details

AGLC: REID & MOLLOY [2017] FamCA 760
Case: [2017] FamCA 760
Decision Date: 26 September 2017

CaseChat Overview and Summary

This case involved a dispute between a mother and father concerning their three children, B, C, and D. The mother sought to relocate to New Zealand with the children, arguing that her emotional and financial circumstances, as well as her parenting capacity, would improve there, and that it was not reasonably practicable for the father to relocate. The father opposed the relocation, seeking equal time with the children in Australia, and alleged family violence. The court was also required to determine property settlement and spousal maintenance issues between the parties.

The primary legal issues before the court were: (1) whether the proposed international relocation of the children to New Zealand was in their best interests, considering the potential deterioration of the father-children relationship and the short-term grief and loss the children might experience; (2) the division of the parties' property pool, specifically the extent of adjustment for section 90SF factors given the father's higher earning capacity and the mother's primary care of the children; (3) the appropriate amount and duration of spousal maintenance, considering the father's capacity to pay and the mother's needs; and (4) whether the father's unauthorised recordings of the mother's telephone conversations with the children warranted a referral of papers.

In relation to the children, the court found that not permitting the relocation was in their best interests, despite acknowledging that the mother's circumstances would improve. The court ordered equal shared parental responsibility but determined that equal time was not in the children's best interests, instead ordering that the children live with the mother and spend significant and substantial time with the father, with detailed provisions for communication, living arrangements, holidays, and special occasions. Regarding property settlement, the court ordered a 70/30 division in favour of the mother, reflecting an adjustment of 20 per cent for section 90SF factors. Spousal maintenance was ordered at $100 per week for 12 months, with the father found to have the capacity to pay. The court decided against referring the father's unauthorised recordings, suggesting he should have recourse to the Evidence Act 1995.

Orders

Orders of the court

THE COURT ORDERS ON A FINAL BASIS THAT:

Parental Responsibility:

The Father and the Mother have equal shared parental responsibility for the major long term issues of the children B (born … 2008); C (born … 2009) and D (born … 2012) (“the children”), including but not limited to:

(a) The children’s education (both current and future);

(b) The children’s religious and cultural upbringing;

(d) The children’s name;

(e) Any other changes to the children’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree;

(c) They shall make a genuine effort to come to a joint decision, and should they fail to come to a joint decision then they will attend Family Dispute Resolution.

Notwithstanding Order 1:

(a) The Mother shall be responsible for the daily care, welfare and development of the children whilst they are living with her; and

(b) The Father shall be responsible for the daily care, welfare and development of the children whilst they are living with him.

Communication between the parents

The parents will communicate with each other in relation to the children by email, with each parent to acknowledge and respond to the other parent’s email on a weekly basis.

In the event of an emergency or illness affecting the children or issue with changeover (i.e. flat tyre) the parents will communicate with each other by text message, with the other parent to acknowledge the text message within two (2) hours, and failing acknowledgement of the SMS, then a telephone call to ensure the non-resident parent has learnt of the emergency.

Living Arrangements

During the school term:

The children live with the Mother.

The children spend time with the Father:

(a) Week 1: For the child B from after school Wednesday or Thursday (dependent upon the evening that the child has football training) until after school (or 3.00pm) the next day school.

(b) Week 2: For all children from after school / day-care Thursday until after school or day-care (3.00pm Monday).

During the holiday periods:

That during the children’s school holiday period the operation of Order 7 is suspended and the children will spend time with the Mother and Father as follows:-

End of Term 1, 2 and 3:

(a) With the Father for the first half of the End of Term 1, 2 and 3 school holiday period in even numbered years plus an additional evening for the Father from the Mother’s time and the second half in odd numbered years plus an additional night at commencement of the holiday period, from the Mother’s time, to the Father’s half, so as to make up for the time referenced in 8(c)(iv) and (v), with the following to apply:-

(i) The school holiday period commences afterschool (3.00pm) on the Friday that is or follows the last day of school until 3.00pm on Sunday before the children return to school. Changeover is to occur at 3.00pm on the middle day but in even years the father will have an additional night being the middle day so changeover will occur on the day after the middle day in even years and the day before the middle day in odd years.

(ii) If the holiday period is an even number of days, the middle day is the day that is one half of the number of days in the period. It is noted that using this time period for at least the End of Term 2 and 3 school holiday period such period will run for 18 nights in accordance with the above, meaning that each parent will spend time with the children for 8 nights, however, subject to the additional night the Father is to receive.

(iii) If the holiday period is an odd number of days, the middle day is the day that is the next whole day following the half number days in the period.

(iv) Should Order 7(b) apply at this time and the children are with the mother then they will remain in the care of the mother for the Sunday evening. If the children are with the Father and Order 7(b) applies then they will remain in the care of the Father for the Sunday evening. If Order 7(b) does not apply then the children are to be returned to the Mother.

(b) With the Mother for the first half of the End of Term 1, 2 and 3 school holiday period in odd numbered years and the second half in even numbered years.

Christmas Holiday period:

Even years:

(i) With the Father from 3.00pm on the Friday that follows or is the last day of school until 5.00pm 26 December. This is to include Christmas Day. The nights in this period are to be calculated having regard to 8(c)(iii).

(ii) With the Mother from 5.00pm from the conclusion of Order 8(c)(i) until 5.00pm 21 evenings (3 weeks) later.

(iii) With the Father from the conclusion of 8(c)(ii) until 5.00pm on the day that will ensure that in calculation with the 8(c)(i) order the Father has a total of 21 nights with the children. Thereafter Order 7 applies.

Odd years:

(iv) With the Father from 3.00pm on the Friday that is or follows the last day of school until 5.00pm 22 December.

(v) With the Mother from 5.00pm 22 December until 5.00pm on the day that is 25 nights later.

(vi) With the Father from 5.00pm at the conclusion of Order 8(c)(v) until 3.00pm (or afterschool) on the Monday that is the first day of school or the Monday of the week that school commences.

Special occasions and other:

In the event:-

(a) That a parent who would otherwise have care of the children pursuant to Orders 6 to 8 is unavailable to care for the children for a period exceeding one (1) overnight, that parent will first contact the other parent and offer that the other parent the opportunity to care for the children for the relevant period, before making alternative arrangements for the children to be cared for the a third party (including partners or family members). There is to be no make-up time with the children for the time lost.

(b) That the Mother’s immediate family (meaning the Mother’s parents, siblings, and their children) in New Zealand are seriously ill (meaning life threatening or terminal illness), or should there be a wedding or funeral for the mother’s immediate family then the Mother is permitted to take the children to New Zealand for a period of up to seven evenings.

10.

Notwithstanding Order 7 the children will always spend time with the mother and father as follows:

With the Mother:

(a) On Mother’s Day from 9:00am until 5:00pm;

(b) Noting the child D and Mother share the same birthday on … each year the mother will spend time with the children from 3:00pm until 7:00pm if they are not in her care, but if they are in her care the Father is to have all children from 3.00pm to 5.00pm;

(c) When the children are otherwise in the care of the father, the children will spend time with the mother on each child’s birthday (with the exception of D) from 3:00pm until 7:00pm, with all three children to attend.

(d) Providing the Mother is in the same location as the children on Christmas Day in even years the children will spend time with the Mother from 2.00pm to 7.00pm.

With the Father:

(e) On Father’s Day from 9:00am until 5:00pm;

(f) On the father’s birthday, from 3:00pm until 7:00pm;

(g) When the children are otherwise in the care of the mother, they will spend time with the father on each of the child’s birthday (with the exception of D) from 3:00pm until 7:00pm, with all three children to attend, however, in relation to D’s birthday Order 10(b) applies;

(h) Providing the Father is in the same location as the children on Christmas Day in odd years the children will spend time with the Mother from 2.00pm to 7.00pm.

Communication:

11.

Noting the time the children spend with the Father in accordance with Orders 7 and 8, the children are able to communicate with the other parent as follows:-

(a) During the term: The Father is permitted to contact the children via telephone between 6.00pm and 6.30pm each Wednesday and in week one (1) Saturday.

(b) During the holidays: Each parent is permitted to telephone the children each Wednesday and Saturday evening when they are with the other parent between 6.00pm and 6.30pm.

(c) Other periods: When the children express a wish to communicate with the other parent, the parent in whose care they are at that time is to facilitate such communication.

Changeovers

12.

Unless otherwise agreed between the parents in writing, changeovers for the children shall occur as follows:

(a) On school days, at the children’s school;

(b) On non-school days, at McDonalds E Town.

Telephone and Skype communication (or similar):

13.

For the telephone and/or Skype (or similar) communication as provided for in these orders the following apply:

(a) The purpose of the call is for communication between the children and the other parent, and is not an opportunity for the parents to discuss adult issues;

(b) The parent receiving the call will ensure that the children are able to speak to the other parent in a quiet environment; and

(c) If the parent receiving the call misses the call, he/she will ensure that the children telephone the other parent by return as quickly as possible.

Exchange of Information

14.

The parents shall:

(a) Not require the children to pass on messages or information to the other parent;

(b) Keep each other informed at all times as to their residential addresses and telephone numbers;

(c) Keep each other informed as to the names and address of any treating medical practitioners, healthcare practitioners who come into any contact with the children. This Order shall be an authority to any such practitioners to provide to the other parent any information that such practitioners may lawfully provide about the children;

(d) Inform the other parent as soon as reasonably practicable of the welfare of the children and any injury or illness affecting the children that requires any medical or hospital attention;

(e) Keep the other parent informed of and supply the other parent with dates and times of the children’s sporting and extracurricular activities.

Education

15.

Any educational institutions attended by the children are hereby authorised and empowered to provide to both parents any information about the children’s educational progress an school related activities and supply both parents with copies of school progress reports, photographs, certificates and awards obtained by the children.

Liberty to attend the children’s events & activities

16.

Both parents are at liberty to attend the children’s sporting and extracurricular activities regardless of which parent may be caring for the children at the time of the event. Noting the Protection Order the Father is prohibited from following or approaching the mother within 10m during children’s events and activities.

17.

The parent who has the child in their care will take and collect the children to and from appointments or extracurricular activities. For medical emergencies both parents are at liberty to attend regardless of which parent may be caring for the children at the time of the event.

Privacy, Non-Denigration

18.

During the time the children are with each parent, that parent shall:

(a) Respect the privacy of the other parent and not question the children about the personal life of the other parent;

(b) Speak of the other parent respectfully; and

(c) Not denigrate or insult the other parent or the other parent’s partner or family in the presence or hearing of the children and use his or her best endeavours to ensure that others do not denigrate or insult the other parent or the other parent’s partner or family in the hearing or presence of the children.

Passports

19.

That the parents do all acts and sign all documents necessary to obtain and renew the children’s Australian and New Zealand passports as and when may be necessary, with the parents to pay for the costs of same in equal shares.

20.

The children’s passports be held by the mother.

21.

In the event that the children are not able to relocate to New Zealand with the mother, and the mother wishes to travel with the children to New Zealand to spend time with her family during holidays or in accordance with 9(b) then the mother will provide the father with a copy of the children’s return flight itineraries to New Zealand within fourteen (14) days of the date of departure, unless for the purposes of a family emergency meaning serious or life threatening illness.

22.

That each parent is not permitted without the written consent of the other to travel with the children outside of the Commonwealth of Australia for the purposes of an overseas holiday, during the children’s holiday time with them.

23.

Unless otherwise agreed between the parents in writing, any such international travel with the children will occur only during the children’s holiday time with that parent pursuant to these Orders.

24.

Unless otherwise agreed between the parents in writing, and if the parents have agreed for the duration of the children’s overseas holiday to exceed their usual time with that parent, the children will, upon their return, spend such additional time with the non-travelling parent as may be necessary to make up for extra time the children were away.

25.

That if either parent intends to travel outside the Commonwealth of Australia with the children, the travelling parent will provide the other parent with written notice regarding the proposed travel at least one (1) month prior to the proposed date of travel.

26.

At least two (2) weeks prior to the date of the overseas travel, the travelling parent will provide the other parent with the following:

(a) An itinerary including the children’s date of departure and return;

(b) Copies of the children’s flight, rail, bus or ship itinerary and tickets (if applicable);

(d) A list of the places or addresses of where the children will visit and/or stay; and

(e) Contact telephone numbers for the children whilst away.

27.

That if either parent travels outside the Commonwealth of Australia with the children, the travelling parent will arrange and facilitate telephone or Skype contact (or similar) between the children and the non-travelling parent, at a time to be agreed between the parents, no less frequently than on one occasion each week the children are outside Australia, with the travelling parent to initiate the call.

Domestic Travel

28.

Unless otherwise agreed between the parents in writing, domestic travel with the children will occur only during the children’s time with that parent pursuant to these Orders.

29.

That if either parent intends to travel with the children away from their usual place of residence and stay away for longer than two nights, the travelling parent will provide the other parent, at least two (2) days prior to the date of travel with the following:

(a) An itinerary including the children’s date of departure and return;

(b) Copies of the children’s flight, rail, bus or ship itinerary and tickets (if applicable);

(d) Contact telephone numbers for the children whilst away.

Prohibition on both parties

30.

That the Mother and Father are prohibited, and an injunction hereby issue, preventing them from consuming illicit drugs within 48 hours or during a period the children are in either parents care.

Spousal Maintenance

31.

For 12 months from the date of these Orders and on the Friday of each week, the Applicant is to pay spouse maintenance, in the sum of $100.00 each week to the Respondent direct for the Applicant’s personal bank account.

32.

That in relation to Order 31 the operation of the spouse maintenance Order will be suspended if:-

(a) The Respondent obtains employment or earns an income (not including child support or benefits from Centrelink) of equal to or more than $500.00 per week.

Property Orders

33.

That the real property pool be divided as to 70 per cent to the Wife and 30 per cent to the Husband and that as part of the 70 per cent the Wife is to retain and the 30 per cent the Husband is to retain:-

(a) The Wife retain the home at F Street, Suburb G and the share loan attached and the Husband transfer his interest in and to the property to the Wife; and

(b) The Husband retain:-

(i) the home at H Street Suburb G and the loans attached to the property and the Wife to transfer her interest in and to the property to the Husband;

(ii) both blocks of land at 1 and 2 J Street, Suburb K; and

(iii) the business L Pty Ltd.

34.

That in Order to give effect to Order 33 above:-

H Street:

(a) The Respondent transfer to the Applicant at his cost within two (2) calendar months of the date of these Orders, all of her right, title and interest in the property situated at H Street, Suburb G in the State of Queensland, more particularly described as Lot … on …, Title Reference ....

(b) Contemporaneously with the transfer referred to in Order 36(a) of these Orders the Applicant obtain finance to enable him to discharge the home loan in the joint names of the parties presently secured by mortgage no. …18 in favour of M Limited over the H Street, Suburb G property, and refinance the loan in his sole name.

(c) Pending the discharge of the home loan in the joint names of the parties, the Applicant shall pay the loan repayments as and when those repayments fall due.

(d) The Applicant shall indemnify and keep indemnified the Respondent with respect to the Payment of the loan, rates, insurances and other outgoings relating to the H Street, Suburb G property.

F Street:

(e) The Applicant transfer to the Respondent at her cost within two (2) calendar months of the date of these Orders, all of his right, title and interest in the property situated at F Street, Suburb G in the State of Queensland, more particularly described as Lot … on …, Title Reference ...

(f) Contemporaneously with the transfer referred to in Order 36(e) of these Orders the Respondent obtain finance to enable her to discharge the investment loan in the joint names of the parties presently secured by mortgage no. …88 in favour of M Limited over the F Street, Suburb G property, and refinance the loan in her sole name.

(g) Pending the discharge of the investment loan in the joint names of the parties, the Respondent shall pay the loan repayments as and when those repayments fall due.

(h) The Respondent shall indemnify and keep indemnified the Applicant with respect to the payment of the loan, rates, insurances and other outgoings relating to the F Street, Suburb G property.

1 and 2 J Street:

(i) The Respondent transfer to the Applicant at his cost within two (2) calendar months of the date of these Orders, all of her right, title and interest in the properties situated at 1 and 2 J Street, Suburb K in the State of Queensland, more particularly described as Lots … and … on …, Title References … and ...

(j) Contemporaneously with the transfer referred to in Order 36(i) of these Orders, the Applicant obtain finance to enable him to discharge the loan in the joint names of the parties presently secured by mortgages no. … and … in favour of M Limited over 1 and 2 J Street, Suburb K property, and refinance the loans into his sole name.

(k) Pending the discharge of the home loans in the joint names of the parties, the Applicant shall pay the loan repayments as and when those repayments fall due.

(l) The Applicant shall indemnify and keep indemnified the Respondent with respect to the payment of the loan, rates, insurances and other outgoings relating to 1 and 2 J Street, Suburb K property.

(m) In the event that the Respondent is unable to discharge the loan in the joint names of the parties, over 1 and 2 J Street, Suburb K property, and refinance the loans into his sole name, the parties do all acts and sign all documents necessary to effect a sale by private treaty of the properties for the best price reasonably obtainable in the following manner:

(i) The parties will list the real properties for sale with real estate agents N Pty Ltd at $69,000.00 per property or such other price as the parties agree upon in writing;

(ii) The Husband pay any and all advertising costs;

(iii) In the event that the real properties fail to sell within six (6) calendar months of the date of this Order, the parties will list the real property for sale by public auction with the real estate agent;

(iv) The reserve price for the purposes of the auction will be $60,000.00 per property or such other price as recommended by the real estate agent and agreed upon between the parties in writing;

(v) In the event that the bidding at auction does not reach the reserve price, the parties must negotiate with the highest bidders or any interested person and effect a sale of the real properties at not more than 5 per cent below the reserve price; and

(vi) If the real property fails to sell at the first public auction, then the parties shall do all things necessary to procure a second, and if necessary, further public auctions for 1 and 2 J Street upon like terms as set out in the preceding sub-paragraph provided that at each subsequent action for the properties, the parties shall instruct their real estate agent and/or auctioneer to reduce the reserve price by a further 5 per cent compared with the price referred to in Order 36(m)(iv) of this Order, or such other reserve price as may be recommended by the real estate agent and agreed between the parties in writing.

(n) The parties each co-operate in every way with the real estate agent including (without limiting the generality of the foregoing):

(i) Allowing the inspection of 1 and 2 J Street at all reasonable times requested by the real estate agent;

(ii) Doing and saying nothing to hinder or prevent a sale being effected; and

(iii) Ensuring the properties are in a neat and tidy condition at the time of inspection by the real estate agent and prospective purchasers.

(o) Pending the completion of the sale of 1 and 2 J Street:

(i) The Applicant shall pay the loan repayments as and when those repayments fall due; and

(ii) The Applicant shall pay the insurance, rates, taxes and utilities as and when those repayments fall due.

(p) On the settlement of the sale of 1 and 2 J Street the proceeds of sale be paid in the following manner and priority:

(i) All costs and expenses of sale included associated legal costs and disbursements, agent commission, valuer’s fees and auction expenses (including repayment of any such expenses as have been paid by the parties);

(ii) The amounts required to discharge the loans in favour of M Limited over 1 and 2 J Street;

(iii) The amounts required to pay any outstanding rates and taxes relating to 1 and 2 J Street;

(iv) In the event there are any remaining net proceeds of sale, the net proceeds will be retained by the Applicant to the exclusion of the Respondent; and

(v) In the event there is a short fall debt in relation to the loan in joint names of the parties for 1 and 2 J Street, Suburb K properties, the Applicant will assume sole responsibility for the shortfall debt and indemnify and keep indemnified the Respondent with respect to the repayment of the debt.

Cash Payment

35.

That within twelve months of the date of the Orders (noting the spouse maintenance order sought) the Applicant pay to the Respondent the sum of seventy nine thousand, and sixty six dollars and forty five cents ($61,383) into the Respondents nominated bank account.,

L Pty Ltd

36.

That within two (2) calendar months of the date of these Orders, the parties do all acts and sign all documents necessary to dissolve the Molloy & Reid partnership with ABN ...

37.

The Applicant retain to the exclusion of the Respondent the Reid electrical services business with ABN … currently trading as “L Pty Ltd” including all tools, plant and equipment, stock in trade and vehicles related to the business.

38.

The Applicant assumes the sole liability for the and indemnifies, and keeps indemnified, the Respondent with respect to the payment of all monies and liabilities (including equipment finance) due and owing, or which may become due and owing from time to time, relating to the Reid electrical services business with ABN … currently trading as “L Pty Ltd”.

Joint bank account

39.

The Respondent is to retain the balance of funds in the M home loan offset account in the joint names of the parties.

Other property

40.

The Respondent retain to the exclusion of the Applicant, the motor vehicle with registration no. ... The Applicant sign any and all such documents to transfer his interest in the vehicle to the Respondent.

41.

Except as otherwise provided for in this Order, the Applicant, to the exclusion of the Respondent, retain and be declared the owner of:

(a) All real estate held in his name;

(b) The benefit and ownership of all policies of superannuation with the exception of that split to the Respondent (including death benefits attached thereto) and life insurance (including any shares issues or to be issued pursuant to any policy) held in his name;

(c) Redundancy payments, long service leave and all other benefits to which he is or has been entitled by virtue of any employment;

(d) All monies and accounts held by the Applicant at the date of the Order; and

(e) All motor vehicles, chattels, household furniture and contents and items of personal property presently in the possession of the Applicant.

42.

Except as otherwise provided for in this Order, the Respondent, to the exclusion of the Applicant, retain and be declared the owner of:

(a) All real estate held in her name;

(b) The benefit and ownership of all policies of superannuation (including death benefits attached thereto) and life insurance (including any shares issued or to be issued pursuant to any policy) held in her name;

(c) Redundancy payments, long service leave and all other benefits to which she is or has been entitled by virtue of any employment;

(d) All monies and accounts in the Respondents name at the date of the Order; and

(e) All motor vehicles, chattels, household furniture and contents and items of personal property presently in the possession of the Respondent.

43.

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

44.

That the parties do all acts and sign all documents necessary to give effect to this Order and should a party refuse or neglect to sign any documents or act in accordance with this Order within fourteen (14) days of a request to do so:

(a) A Registrar or Deputy Registrar of the Family Court of Australia or the Federal Circuit Court of Australia be appointed pursuant to Section 106A of the Family Law Act 1975 (as amended), to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders; and

(b) An Affidavit of the solicitor for the party seeking to give effect to this Order shall be sufficient proof of the default of the other party to do the act or sign the document necessary to give effect to the Orders.

Superannuation

45.

That Orders 45 to 51 (inclusive) of these Orders are binding on the AMP Superannuation Saving Trust as Trustee (“the Trustee”) of the applicant’s AMP Superannuation Fund with account number … (“the AMP Superannuation Fund”).

46.

That the court allocate pursuant to section 90MT(4) of the Family Law Act 1975 (“the Act”), a base amount of $79,400 to the Respondent out of the Applicant’s interest in the AMP Superannuation Fund.

47.

That pursuant to 90MT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the applicant’s interest in the AMP Superannuation Fund, the respondent shall be entitled to be paid an amount calculated in accordance with Pt6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount referred to in Order 48 and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

48.

That Order 47 has effect from the operative time.

49.

That the operative time for the purposes of Order 47 of these Orders is four (4) business days after the date of service of the sealed final Orders upon the Trustee.

50.

That until such time as the superannuation split to the applicant pursuant to these Orders can be rolled over into a separate account for the applicant:

(a) The applicant provide to the respondent no less that twenty-eight (28) days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the AMP Superannuation Fund.

(b) The applicant can direct and authorise the Trustee to communicate with the respondent and/or any other person authorised by her in writing:

(i) To answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the AMP Superannuation Fund; and

(ii) To provide the respondent and/or her authorised representative with a copy of any notice of any application or request by the applicant which seeks release of entitlements in the AMP Superannuation Fund in so far as that release may affect the respondent’s entitlement in the AMP Superannuation Fund pursuant to these Orders.

(c) That applicant by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the respondent, her heirs, executors, administrators or nominees from receiving the benefits in the AMP Superannuation Fund to which she is entitled pursuant to these Orders.

51.

In the event that the superannuation split for the respondent pursuant to these Orders can be rolled over into a separate account to the respondent, then each of the parties is to do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

Conclusion of proceedings

52.

That otherwise all extant applications be dismissed and the matter removed from the list of active pending cases.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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