SELWOOD & SELWOOD

Case [2014] FamCA 531


FAMILY COURT OF AUSTRALIA

SELWOOD & SELWOOD [2014] FamCA 531

FAMILY LAW – CHILDREN – Final Orders – equal shared parental responsibility – whether equal time in best interests of children – children expressed a wish to maintain existing arrangements – high degree of conflict between mother and father – best interests of children to reduce the number of handovers – children to spend equal time with mother and father.

FAMILY LAW – CHILDREN – CHILDREN – Final Orders – international and interstate travel – subject to conditions both parties be at liberty to travel with the children – father not to take children to any location at which the father is participating in or otherwise involved with his sporting actvities without the consent of the mother.

FAMILY LAW – CHILDREN – PROPERTY – Final Orders – just and equitable to alter assets of the parties – contributions assessed as equal – where husband did not make full and frank disclosure – where husband gave unreliable evidence – where husband continued to reduce the value of his assets during and after the commencement of proceedings - whether significant adjustment in favour of wife is appropriate – just and equitable – division of assets 70:30 in favour of the wife.

Family Law Act 1975 (Cth) s 60CC, 60CD, 65DAA, 66B, 66C, 66E, 66G, 66H, 66J, 66K, 66P, 66S,79, 75(2), 80
Child Support (Assessment) Act 1989 (Cth) s 55H, 64B, 116, 117, 118

Bevan & Bevan (2014) Fam LR 387
Gould & Gould (2007) FLC 93-333
Norman & Norman [2010] FamCAFC 66
In the Marriage of Kannis (2003) FLC 93-135
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Ms Selwood
RESPONDENT: Mr Selwood

INTERVENERS

(24 August 2011 to 13 July 2012):

Mr K & Mr H Selwood
FILE NUMBER: DNC 359 of 2010
DATE DELIVERED: 18 July 2014
PLACE DELIVERED: Adelaide
PLACE HEARD: Darwin
JUDGMENT OF: Justice Dawe
HEARING DATE:

9-13 July 2012; 
27-28 Sep 2012; 
1-4 Oct 2012;
3 Dec 2012 (by videolink)
21-22 Jan 2013; 
22-24 Apr 2013

(trial reopened 17 March 2014)
13-15 May 2014 (by videolink)

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rowbottom (with Ms Farmer)
SOLICITOR FOR THE APPLICANT: Withnalls Lawyers
COUNSEL FOR THE RESPONDENT: Mr Supljeglav (with Mr Norrington)
SOLICITOR FOR THE RESPONDENT: DS Family Law
COUNSEL FOR THE INTERVENERS: Mr Lloyd, SC
SOLICITOR FOR THE INTERVENERS: Cater & Blumer

Orders

  1. The mother Ms Selwood and the father Mr Selwood have equal shared parental responsibility for the children, B born … 1999 and C born … 2001 (“the children”).

  2. During the school terms commencing 21 July 2014 the children live with the father and mother equally as follows:

    (a)with the father from after school on Friday until the conclusion of school on the following Friday, each alternate week commencing the first week;

    (b)with the mother from after school on Friday until the conclusion of school on the following Friday, each alternate week commencing the second week; and

    (c)at such other times as may be agreed in…

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AGLC
SELWOOD & SELWOOD [2014] FamCA 531
Case
[2014] FamCA 531
Decision Date

CaseChat Overview and Summary

In the matter of *Selwood & Selwood*, Justice Dawe of the Family Court of Australia considered final orders concerning the parental responsibility, time arrangements, and property settlement for the parties, Ms Selwood and Mr Selwood, and their two children. The dispute centred on the best interests of the children, particularly in light of the parents' high level of conflict and the children's expressed wish to maintain existing arrangements.

The court was required to determine whether equal shared parental responsibility and equal time with both parents were in the best interests of the children. Additionally, the court had to consider provisions for international and interstate travel with the children, including specific conditions relating to the father's involvement in sporting activities. The court also addressed the division of various properties and financial assets between the parties.

Justice Dawe ordered that the parents have equal shared parental responsibility for the children. The court established a detailed schedule for the children to spend equal time with each parent during school terms and holidays, aiming to reduce the number of handovers and thereby minimise conflict. Specific provisions were made for significant dates, communication, and travel, including a restriction on the father taking the children to overseas locations during periods of his sporting involvement without the mother's consent. The court also made detailed orders regarding the property settlement, providing the wife with options to retain certain properties and outlining the financial adjustments and sale processes for other assets.

Orders

Orders of the court

1.

The mother Ms Selwood and the father Mr Selwood have equal shared parental responsibility for the children, B born … 1999 and C born … 2001 (“the children”).

2.

During the school terms commencing 21 July 2014 the children live with the father and mother equally as follows:

(a) with the father from after school on Friday until the conclusion of school on the following Friday, each alternate week commencing the first week;

(b) with the mother from after school on Friday until the conclusion of school on the following Friday, each alternate week commencing the second week; and

(c) at such other times as may be agreed in writing by the parents.

3.

Commencing school holidays in September/October 2014 the parents equally share each school holiday period with the children as agreed between the parents but in default of agreement, with the father for the first half of the school holiday period in odd numbered years and for the second half of the school holiday period in even numbered years and with the mother at all other times.

4.

The time to be spent in accordance with paragraphs 2 and 3 shall be suspended while each parent is spending the following periods of special significance with the children:

(a) on the children’s birthday in each year and every year with the parent who does not otherwise have the children in their care, from 3.00 pm until 8.00 pm;

(b) with the mother on the mother’s birthday in each and every year from 3.00 pm until 8.00 pm;

(c) with the father on the father’s birthday in each and every year from 3.00 pm until 8.00 pm;

(d) with the mother and father equally on Christmas Day each and every year as agreed between the parents but in default of agreement as follows:

(i) with the father from 6.00 pm on Christmas Eve until 12 midday on Christmas Day and with the mother from 12 midday on Christmas Day until 6.00 pm on Boxing Day in each alternate year commencing 2014;

(ii) with the mother from 6.00 pm on Christmas Eve until 12 midday on Christmas Day and with the father from 12 midday on Christmas Day until 6.00 pm on Boxing Day in each alternate year commencing 2015.

(e) the children shall spend time with the mother on Mother’s Day each and every year from 3.00 pm until 6.00 pm on that day;

(f) the children shall spend time with the father on Father’s Day each and every year from 3.00 pm until 6.00 pm on that day.

5.

For the purposes of changeover of the children pursuant to paragraphs 2, 3 and 4 (and unless the children are otherwise being collected from the school) the mother shall deliver the children to the father’s residence at the commencement of time to be spent and the father shall deliver the children to the mother’s residence at the conclusion of time to be spent.

6.

For the purposes of calculating the school holiday periods, school holidays commence on the day after the last day of the school term and conclude on the first day of the following school term.

7.

Each parent shall have telephone communication with the children at all reasonable times requested by either child and at the instigation of the parent with whom the children are not residing PROVIDING THAT such parent communication instigated by the parent takes place only between 4.00 pm and 8.00 pm.

8.

That each parent be permitted to take the children on holidays interstate or overseas during the time the children spend with that parent PROVIDED THAT thirty [30] days written notice is provided to the other parent.

9.

Subject to notice being given in accordance with paragraph 8 either parent be permitted to take the children on interstate or overseas holidays PROVIDED THAT:

(a) the time does not conflict with a period of special significance in accordance with paragraph 4;

(b) the parent give the other parent a written itinerary containing the dates of departure and return, and the address and telephone number of the places where the children shall be staying during the holiday;

(c) the nature of the proposed travel is not of the kind dealt with in paragraphs 11or 12 of these orders;

10.

Subject to any further order of the Court the children’s passports to be handed over to the travelling parent within fourteen [14] days of notice being given to the parent not travelling overseas.

11.

The children not be permitted to travel or spend time with the father or attend at any overseas location during any period the father is involved in, participating in or training in competition or post-competition sports activities without the mother’s prior specific written consent.

12.

The father not permit or allow the children to attend his sporting events without the mother’s prior specific written consent.

13.

Each parent is restrained and an injunction is hereby granted restraining each parent from denigrating the other parent to or in the presence of the children or allowing the children to remain in any place where such denigration is occurring.

14.

The mother or the father at all times accompany the children or either of them to any medical, dental or hospital appointments.

15.

In the event the father is unable to accompany the children or either of them to attend a medical, dental or hospital appointment the father notify the mother forthwith and the mother attend to collect the child or children for such appointment and return the children at conclusion of the appointment.

16.

In the event the mother is unable to accompany the child or children to such appointments during any time spent the mother shall notify the father and the father attend to collect the child or children for such appointments and return the child or children at the conclusion of such appointments.

17.

The parties inform the other in the event of any serious accident, injury or illness suffered by any of the children and any medical or other treatment for the children.

18.

Each parent shall keep the other informed of their residential addresses and telephone numbers and any changes thereto forthwith.

19.

Each parent be entitled to obtain directly from any school attended by the children, or from any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other parent so informed should such details change.

20.

The party shall equally share the costs associated with the following expenses for the children:

(a) all extra-curricular activities undertaken by the children;

(b) all school fees;

(c) all medical insurance and medical expenses.

21.

Upon compliance by the husband with the property settlement orders hereinafter set out the orders of 15 April 2013 are discharged.

Property Settlement Orders

22.

If within thirty [30] days from the date hereof the wife notifies the husband in writing that she exercises her option to retain the properties at O Road, Suburb I, L Street, Suburb M and N Street, Suburb P, the following shall apply:

(a) within fourteen [14] days of such notice being given the husband sign all documents necessary to transfer to the wife all his right title and interest in the following real estate:

(i) O Street, Suburb I, NT

(ii) L Street, Suburb M, NT

(iii) N Street, Suburb P, NT

(b) provided that upon settlement the wife is to pay the husband the sum of FIVE HUNDRED AND NINETY ONE THOUSAND THREE HUNDRED AND THIRTY EIGHT DOLLARS AND THIRTY-THREE CENTS [$591,338.33];

(c) upon settlement the wife do all acts and things necessary to refinance the existing National Australia Bank Home Loan and thereafter indemnify the husband with respect to the National Australia Bank Home Loan.

23.

If within thirty [30] days from the date hereof the wife notifies the husband that she wishes to exercise the option to retain the former matrimonial home at O Street, Suburb I, NT then the following shall apply:

(a) within fourteen [14] days of such notice being given the husband sign all documents necessary to effect a transfer to the wife of all his right title and interest in the real estate at O Street, Suburb I, NT;

(b) upon settlement the wife do all acts and things necessary to refinance the existing National Australia Bank Home Loan and indemnify the husband with respect to the National Australia Bank Home Loan.

(c) subject to any written agreement between the parties to the contrary the remaining real estate at L Street, Suburb M, NT and N Street, Suburb P, NT be placed on the market for sale by public auction within fourteen [14] days after the wife has provided the notice referred to in this paragraph such auction to be conducted by auctioneers and agents determined and appointed by the wife for reserved prices as determined by the wife after obtaining advice from a licenced auctioneer;

(d) the proceeds of sale of the properties auctioned or sold in accordance with the preceding sub-paragraph to be paid and distributed as follows:

(i) in payment of all reasonable costs of sale including agents fees and auctioneer costs, legal and conveyancing costs, and any rates adjustments or relevant disbursements payable;

(ii) payment to the wife of the sum of FOUR HUNDRED AND EIGHT THOUSAND SIX HUNDRED AND SIXTY-ONE DOLLARS AND SIXTY-SEVEN CENTS [$408,661.67] less seventy [70] per cent of the amount incurred for sub-paragraph (i) hereof;

(iii) payment to the wife of seventy [70] per cent of any amount by which the sale prices for both properties exceeds ONE MILLION DOLLARS [$1,000,000.00];

(iv) payment to the husband of the balance.

24.

If within thirty [30] days from the date hereof the wife has not informed the husband of the intended exercise of her option to acquire any of the properties as set out in accordance with the above orders then each of the properties at O Street, Suburb I, NT, L Street, Suburb M and N Street, Suburb P shall be placed on the market for sale by public auction by auctioneers and agents determined and appointed by the wife for reserved prices as determined by the wife after obtaining advice from a licenced auctioneer.

25.

The proceeds of sale of the properties auctioned or sold in accordance with the preceding paragraph to be paid and distributed as follows:

(a) in payment of all reasonable costs of sale including agents fees and auctioneer costs, legal and conveyancing costs;

(b) any rates adjustments and in discharge of all mortgages and related incidentals;

(c) the balance then remaining to be distributed as follows:

(i) in payment to the wife of ONE MILLION TWO HUNDRED AND SIXTY THREE THOUSAND SIX HUNDRED AND NINETY THREE DOLLARS [$1,263,693.00];

(ii) in payment to the wife of seventy [70] per cent of the amount by which the total of the sale prices less the cost of sale exceeds TWO MILLION THREE HUNDRED AND FIFTY THOUSAND DOLLARS [$2,350,000.00];

(iii) in payment of balance to the husband.

26.

The husband be entitled to retain any outstanding rents and debts due in relation to the real estate property the subject of these orders, together with any debts due to the parties from personal loans made by the husband.

27.

The husband indemnify the wife with respect to all and any taxation liabilities or other debts in relation to himself personally and in relation to Selwood Pty Ltd and the Q Trust.

28.

Each party shall be entitled to the exclusion of the other all other property and chattels of whatsoever kind or nature in the possession of such party as at the date hereof and for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements including but not limited to the wife to retain her Z Pty Ltd shares, motor vehicle, her superannuation, household contents, jet ski and trailer and quad bike.

29.

Failing agreement the question of costs is reserved to a date to be fixed.

30.

All applications are removed from the active pending list.

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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