ROSINGTON & ROSINGTON

[2015] FamCA 1038

FAMILY COURT OF AUSTRALIA

ROSINGTON & ROSINGTON [2015] FamCA 1038

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the applicant husband seeks orders for interim spouse maintenance and a partial property settlement – Where the respondent wife opposes an order for interim spouse maintenance and proposes the husband receive a partial property settlement significantly lower than that sought – Where the husband currently has no income and has been effectively excluded by the wife from the parties’ corporate entities – Where the parties’ assets and superannuation were effectively generated during their cohabitation – Where the Court finds it just and equitable to exercise its power pursuant to sections 79 and 80(1)(h) of the Act – Where the Court finds the husband is unable to support himself adequately for the purposes of section 72 of the Act – Orders made as sought by the husband.

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where it was agreed between the parties that the father spend time with the children on a supervised basis, pending the appointment of an Independent Children’s Lawyer –Where the Court finds it inappropriate to apply the presumption of equal shared parental responsibility – Orders made – Adjourned to a future date for further consideration.

Family Law Act 1975 (Cth) ss 72, 79, 80

APPLICANT: Mr Rosington

RESPONDENT: Ms Rosington

FILE NUMBER: SYC 6654 of 2015

DATE DELIVERED: 25 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 13 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Byrne

SOLICITOR FOR THE RESPONDENT: Abrahams & Associates Lawyers

Orders

A.The following definitions for the purposes of these Orders:

A.1."the parties” means the respondent mother (“the mother” or "the wife") and the applicant father (“the father” or "the husband");

A.2.“the children” means the two children of the marriage, namely:

i.B born … 2009; and

ii.C born … 2009.

A.3.“the Companies” means:

i.D Pty Ltd ACN … of which the Wife is sole director and shareholders and of which E Pty Ltd holds all of the 120 ordinary shares;

ii.D Pty Limited ACN … of which the Wife is the sole director and shareholder and of which the Rosington Group Pty Limited hold 20 of the ordinary shares;

iii.D Holdings Pty Limited ACN … of which the Husband and Wife are directors and the husband is secretary and each of the husband and wife hold one ordinary share each;

iv.E Pty Ltd ACN … of which the Wife is the sole director, secretary and shareholder;

v.Rosington Group Pty Limited ACN … of which the Wife is the sole director, secretary and of which the husband and wife each hold 1 ordinary share;

vi.F Pty Limited ACN … of which the  Wife is the Director and Secretary and of which the Rosington Group holds 100 of the 100 ordinary shares;

vii.G Pty Limited ACN … of which the Wife is the Director and Secretary and of which D Pty Limited hold 11,750,000 of the 12,631,000 shares in the Company;

viii.ACN … Pty Limited of which the Wife is the Sole Director and Secretary and holds all 120 ordinary shares.

Parenting

PENDING FURTHER ORDER:

1. The children will live with the mother.

2. Subject to the availability of Phoenix Rising for Children or such other supervision until this matter next comes before the Court on the date allocated pursuant to Order (9), the children will spend time with the father conditional upon Order (3) as follows:

   (a)each Tuesday from the conclusion of school, or where the children are not at school then 3.00 pm until 6.00 pm;

   (b)each Thursday from the conclusion of school, or where the children are not at school then 3.00 pm until 6.00 pm;

   (c)each Sunday from 10.00am until 3.00pm;

   (d)on Christmas Day 2015 for four hours with such period to be based on the availability of the supervisor and if any dispute regarding the time then from 10.00 am until 2.00 pm; and

   (e)at such other times as the parties agree in writing.

3. On a without admissions basis, the children’s time with the father pursuant to Order (2) will be supervised by a person agreed between the parties or if no agreement as to that person within seven days prior to the commencement of each visit then by a supervisor from Phoenix Rising for Children or Connecting Families.

4. The mother will pay all costs associated with the provision of supervision being provided by either Phoenix Rising for Children, or Connecting Families including any costs associated in obtaining reports as requested by either party or the Independent Children's Lawyer.

5. The children are at liberty to telephone the father or to communicate with him by any other electronic means including by Skype or Facetime at any reasonable time.

6. The father is at liberty to telephone the children or communicate with them by any electronic means including Facetime or Skype at any reasonable time.

7. The mother is restrained from travelling overseas with the children if such travel will affect the father’s time pursuant to these Orders, other than for the period 5 January 2016 until 24 January 2016.

8. Each party will notify the other no more than twenty-four (24) hours after any change to his or her address and/or landline and/or mobile telephone number and/or email address.

9. The relief sought in the Husband's Initiating Application be listed for further Interim Hearing on Wednesday, 17 February 2016.

10. Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer is appointed for the children.

11. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation of the children.

12. As soon as practicable each party make available to the Legal Aid Commission of New South Wales copies of all applications and affidavits, upon which that party relies, together with any Orders and copies of relevant reports.

13. Leave is granted to the Independent Children’s Lawyer to issue such subpoena to produce documents as considered necessary for the proper conduct of the proceedings.

Partial property settlement

1. That within four weeks of the date of the Orders the wife cause payment to the husband as he may direct in writing the sum of $500,000  as a partial property settlement.

Interim spouse maintenance

PENDING FURTHER ORDER:

1. The wife cause payment to the husband of a sum of $4,500 per week by way of interim spouse maintenance, such payment to be made on Monday of each week, to the father’s nominated bank account with ANZ Bank in the name of Mr Rosington BSB … Account number ...

Injunctions

PENDING FURTHER ORDER:

1. The parties are restrained by injunction from:

   (a)selling, transferring, assigning, encumbering or alienating their shares in the companies or such trust as the parties may have an interest other than in the ordinary course of business without the consent of  the other party;

   (b)doing any act or thing that may cause the assets of the companies or trusts to be disbursed, sold, transferred, assigned, further encumbered or alienated other than in the ordinary course of business, without the consent of the other party;

   (c)doing any act or thing to cause the winding up of the companies without the consent of the other party;

   (d)doing any act or thing to cause or permit any of the companies to fail to meet their liabilities as and when same fall due; and

   (e)selling, mortgaging, assigning or alienating any real property of which either of the parties is the registered proprietor, including but not limited to drawing further funds against any existing security without the consent of the other party.

2. Within seven (7) days from the date of the making of these Orders, the wife cause the delivery to H Street, Suburb I the following items:

   (a)Watch 1;

   (b)Watch 2;

   (c)the Apple Mac computer, monitor, keyboard and mouse from the home office;

   (d)all of the husband’s clothing, including recreational equipment; and

   (e)motor scooter, including the helmet and motor bike jacket.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rosington & Rosington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6654 of 2015

Mr Rosington

Applicant

And

Ms Rosington

Respondent

REASONS FOR JUDGMENT

The proceedings

1. By an Initiating Application filed on 9 October 2015 the applicant husband, Mr  Rosington, sought interim orders for spouse maintenance, payment of lump sums totalling $500,000, injunctions and in relation to the parties’ children.  The Minute of Orders submitted on the husband’s behalf at the interim hearing on 13 November 2015 stated that the lump sum payment is to be by way of partial property settlement.  This Minute quantified the interim spouse maintenance sought by the husband at $4,500 per week.

2. Interim parenting issues were largely resolved on the basis that the parties’ six year old twin sons B and C spend time with the father on a supervised basis, pending further consideration and input from an Independent Children’s Lawyer.  There remained minor issues as to the duration and location of supervised periods; the means and time of communication between the father and the children, Christmas contact and restrictions on overseas travel.

3. I intend to list the competing applications for interim parenting orders for further consideration on Wednesday, 17 February 2016, hence I do not propose to determine the issue of overseas travel at this time.  On 13 November 2015, for the first time, the mother indicated to the father and the Court that she intends to travel overseas with the children between 5 and 24 January 2016.  To the father’s credit, he acceded to that proposal rather than deprive the children of this holiday.

4. The wife sought an order that the husband receive a sum of US$88,000 by way of partial property settlement.  She opposed the making of any order for interim spouse maintenance.

5. The parties were in dispute in respect of the injunctions sought by the husband as to dealings with their companies and other assets.  The wife declined to consent to any injunctive orders and proposed that the parties enter into undertakings that they deal with the companies and other assets only after provision of fourteen days’ notice.

6. There was also a dispute as to certain chattels which the husband sought to retrieve from the former matrimonial home.  The wife opposed his receiving a computer and a German motor vehicle.  At present the husband has only a motor scooter, which obviously would be unsuitable transport for the children.  The parties also own a British motor vehicle, which the husband proposed would be retained by the wife.

Background

1. The husband and the wife, who are aged 47 and 40 respectively, commenced their relationship in October 2003 and married in 2006.  The husband was of the view that the parties separated in approximately August 2015, when the wife emailed a demand that he resign as a director of various companies.  The wife considered that separation occurred on 2 October 2015, when she received a letter from the husband’s solicitor which stated that he took the view that the marriage had broken down with no prospect of reconciliation.

2. The parties have twin sons, C and B, who were born in 2009 and are currently six years of age.  The parties adopted the children pursuant to an order of the Supreme Court on 20 March 2013.

3. At the commencement of cohabitation the husband owned 90 per cent of issued shares in a company known as J Pty Ltd (now known as “D Pty Ltd”).  The husband also held an interest in a company now known as F Pty Ltd (previously being known as K Pty Ltd).  The husband acquired the remaining 10 per cent of shares in J Pty Ltd in about November 2004.

4. A company known as G Pty Ltd (“GPL”) was incorporated on 15 September 2009.  This entity was described by the husband as “an online tool”.

5. In 2006 the parties acquired a shelf company which became known as the Rosington Group Pty Ltd.  The parties each hold one share in this company, which is the trustee of the Rosington Family Trust.  The husband’s shares in J Pty Ltd were transferred to Rosington Group Pty Ltd.

6. D Pty Ltd was described by the husband as a management consulting service company.  According to the husband the parties built up this business to a point where the company employed 35 people and had an annual turnover of approximately $10 million.

7. The wife took on the role of CEO of D Pty Ltd.  From 2012 the husband assumed the role of primary carer for the children.

8. At various times during the marriage the parties purchased and sold real estate.  At the present, properties at L Street, Suburb M; N Street, Suburb M;  and O Street, Suburb P are held in the sole name of the wife.

9. The former matrimonial home at L Street, Suburb M was purchased in March 2012 for $4.2 million.  The husband deposed that the property is encumbered by a mortgage to the St George Bank of approximately $1,820,000.

10. In October 2011 a boat was purchased for $580,000 in the name of the wife.  It seems that the purchase money was borrowed from D Pty Ltd.

11. The parties have a self-managed superannuation fund which is administered by First Unity Wealth Management.  A portfolio review dated 30 July 2015 (annexure D to the husband’s affidavit of 8 October 2015) indicated that the value of the fund is $760,127.

12. On 10 January 2015 an incident occurred at the former matrimonial home which involved the husband, the wife and a friend Mr Q.  The husband has been charged with recklessly inflicting grievous bodily harm, assault occasioning actual bodily harm and common assault.  An interim AVO was issued for the protection of the wife and varied to include the children on 7 October 2015.  It seems that the husband intends to defend the criminal charges and contest the AVO.  The parties continued to live in the Suburb M property following this incident, which the wife reported to police in September 2015.

13. In March 2015 the husband arranged to attend a program sponsored by KPMG in the United States during the following May.  He left Australia on 29 April 2015 and met the wife, the children and her parents in City R after he completed the program.

14. The parties had planned a holiday in Country S, New York, the United Kingdom and Italy between 21 May 2015 and 8 July 2015.  The husband remained in Country S between late June and the end of July 2015 while the wife, the children and her parents continued with the pre-planned holiday.  The husband claimed that he stayed in Country S in order to seek funds for the parties’ business from international investors.  The wife returned to Australia with the children on 24 July 2015.

15. GPL ceased to trade on 31 July 2015.  According to the wife, this venture had sustained losses since its inception in 2009.

16. The husband alleged that, in early August 2015, his three credit cards were declined when he tried to charge purchases in Country S.  He claimed that the wife refused to allow him access to any of the parties’ funds unless he agreed to resign from all of his positions as director of various companies.

17. After the husband signed the resignation documents the wife remitted to him a sum of US$162,000.  The husband returned to Australia after he received these funds.  He moved into accommodation at Suburb I which he secured on a short-term basis through Air BnB.  On 10 November 2015 the husband entered into a twelve month lease for an apartment at H Street, Suburb I.  The property is a furnished two bedroom unit for which he pays rental of $5,214 per month.

18. At present the husband has approximately $95,000 remaining from the sum of US$162,000 which he received from the wife.  He deposed that he was required to pay a sum of $24,000 to his solicitors to meet the cost of this interim hearing.

Consideration

Partial property settlement

1. The husband sought payment of the sum of $500,000 by way of a partial property settlement.  The wife sought an order that the husband receive an amount of US$88,000, which I construe as a concession that it is just and equitable that there be a form of partial property settlement in his favour.

2. Independently of this concession, I consider it to be just and equitable that there be an exercise of power pursuant to section 79 and section 80(1)(h) at this stage of the proceedings.  The wife has effectively excluded the husband completely from any access to the parties’ assets and the income generated by D Pty Ltd.  The husband participated in the accumulation of the parties’ wealth, yet the wife now sees to exclude him completely from the fruits of their joint efforts other than allowing him access to a sum of US$88,000.

3. The wife occupies the former matrimonial home, which is a large and expensive property in Suburb M.  By contrast the husband lives in a rented two bedroom home unit at Suburb I.  In additional respects, the wife is in a position to continue to enjoy the luxurious lifestyle which was the parties’ custom prior to their separation.  By comparison, the husband lives in very modest circumstances.

4. The husband alleged that neither party owned assets of any significant value at the commencement of cohabitation.  The wife maintained that she had unspecified assets to the value of $20,000 to $30,000 and lived in rented premises.

5. It is thus the case that the parties’ present net assets and superannuation effectively were generated during their cohabitation.  The wife seemed to suggest that her efforts were the principal cause for their financial success, whereas the husband engaged in business activities which generated losses.  These issues will no doubt be explored at trial but, obviously, cannot be determined at an interim hearing.

6. There was no clear evidence as to the present value of the net pool of assets and superannuation.  The wife elected to give no estimates of the value of the parties’ real estate, motor vehicles or corporate entities in her Financial Statement.  The husband’s Financial Statement offered an estimate of the total value of the parties’ real estate of approximately $10 million.  The husband identified various encumbrances but did not provide estimates of the quantum thereof.  As noted above, however, the husband deposed in his affidavit that the Suburb M property is subject to a mortgage of $1,820,000.

7. The financial statements for D Pty Ltd as at 30 June 2014 (Exhibit 1) showed net profits of $1,170,837 in 2013 and $700,655 in 2014.  The balance sheet indicated that the company held cash of $4,962,492 as at 30 June 2014.

8. In a statement made to police in relation to the incident in January 2015, the wife said that the parties possessed assets to the value of about $20 million.  Of course, that statement does not establish the value of the net pool but, for present purposes, it provides some indication of the wife’s assessment of the extent of the parties’ wealth.

9. If the net value of the parties’ real estate assets is approximately $8 million, a partial property settlement of $500,000 to the husband could hardly be said to place in jeopardy the wife’s legitimate and reasonable expectations of a final settlement.  $500,000 amounts to only approximately 0.06 per cent of that figure.  There are additional assets and superannuation.

10. During the course of the interim hearing, counsel for the wife proposed that the husband take the boat as an element of a partial property settlement.  In his Financial Statement the husband ascribed a value of $375,000 to that asset.  This figure, coupled with the sum of US$88,000 is about equal to the sum of $500,000 which the husband sought as a partial property settlement.  I must add that I agree with the submission on behalf of the husband that the wife’s offer of the catamaran was “just disingenuous” in circumstances where it has sunk and thus has an unknown value.

1. For all of these reasons, I am satisfied that it is just and equitable for the husband to receive a partial property settlement of $500,000.

Interim spouse maintenance

1. The husband presently has no income and has not worked outside the parties’ corporate entities for some ten years. I am satisfied that, at this stage, the husband is unable to support himself adequately for the purposes of section 72 of the Family Law Act 1975 (Cth). I am far from persuaded that the husband should be required to meet his living expenses from the funds which he will receive as a partial property settlement. I have indicated above my reasons for arriving at the conclusion that the husband should receive that payment as a partial property settlement.

2. I am conscious that, but for the parties’ separation and the wife’s actions to exclude the husband from the corporate entities, he would have ongoing access to a substantial income stream.  I can identify no valid reason why the whole of these funds should be available to the wife alone.

3. The expenses asserted by the husband in his Financial Statement appear to be commensurate with the parties’ pre-separation lifestyle and standard of living.  Additionally, the husband currently pays $460 per week for consultations with a psychiatrist to address his depression.  I am satisfied that it is appropriate in all of the circumstances that the husband receive spouse maintenance of $4,500 per week, if the wife has the capacity to pay that sum.

4. According to her Financial Statement, the wife’s gross weekly income is $45,331.  Her claimed expenses included very specific amounts but, for some unknown reason, the wife asserted that her “total personal expenditure” is “NK”.  I am puzzled as to why that conclusion follows, when the wife ascribed particular figures to all items of expenditure except “superannuation” and “other”.

5. On the face of the wife’s Financial Statement, her fixed items of expenditure and the costs asserted in Part N total approximately $33,700 per week.  Some of these alleged costs might be open to question but, for present purposes, the wife’s own evidence establishes that she has the capacity to pay to the husband interim spouse maintenance of $4,500 per week.  I am satisfied that he should receive interim spouse maintenance in that amount.

Parenting issues

1. I consider that it is not appropriate to apply the presumption of equal shared parental responsibility in the circumstances of these interim proceedings.  There are many disputed issues of fact which can only be determined at a later time, and could well have relevance to the application of that presumption.

2. The mother sought to restrict the children’s time with the father to two hours per week under supervision.  The father sought orders that the children spend time with him for three hours each Tuesday and Thursday and from 10.00 am until 3.00 pm every Sunday.  The husband did not concede that supervision is necessary but agreed to that proposal so as to enable the children to begin spending time with him.

3. In my view, it is significant that the mother chose to place the children in the unsupervised care of the father for approximately two years while she engaged in full-time employment with D Pty Ltd.  As the father now agrees to see the children under supervision, I see no reason to limit their time with him to two hours per week.  I am conscious that the children have not seen the father since June 2015 and, in my view, his proposal is likely to ameliorate this interruption to the relationship.  Further, the mother will take the children overseas for almost three weeks in January 2016.

4. I see no reason to confine the children’s time with the father to the environs of the former matrimonial home.  That situation is artificial and could convey to the children a sense that the father is in some way a danger to them.  I have no reason to doubt that proper arrangements will be put in place at all times by a professional supervisor.

5. I was not told why the children’s communication with the father, at times of his election, should be limited to 45 minutes on one occasion per week and confined to telephone contact.  The father can hardly constitute a risk to the children, of whom he has previously been primary carer, by way of electronic communication.

6. The mother opposed any orders for the children to spend time with the father on Christmas Day, for no reason which was proffered in the submissions on her behalf.  In my view, experience indicates that Christmas Eve and Christmas Day are special events in the lives of six years olds.  I consider that the children should spend time with the father on Christmas Day.

7. Overall, I will make interim parenting orders as proposed by the father.  As noted, and to his credit, he consented to the mother’s proposal to take the children on an overseas holiday between 5 and 24 January 2016.

Injunctions

1. The husband sought orders which would restrain each of the parties from dealing with their assets other than in the ordinary course of business.  The wife proposed that the parties enter into undertakings that they each refrain from dealing with their assets without first giving 14 days’ notice.

2. The wife’s proposal must be intended to provide an opportunity for the other party to approach the Court for injunctive relief, if he or she has a basis for doing so.  Experience indicates that this scheme is impracticable, in terms of gaining quick access to a court with stretched resources.  I will accede to the husband’s application in relation to injunctive orders.

Chattels

1. The wife opposed the husband’s application that he receive a computer and German motor vehicle.  I was provided with no reason why the husband should be deprived of the computer.  The wife deposed that the German motor vehicle is used by the children’s nannies from time to time and I would not wish to disrupt that arrangement.  It seems to me that the husband would be well able to afford to purchase a motor vehicle for himself from the funds which he will receive by way of a partial property settlement.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 25 November 2015.

Associate: 

Date:  25 November 2015