Telford and Telford (No 2)

[2013] FamCA 1126

FAMILY COURT OF AUSTRALIA

TELFORD & TELFORD (NO 2) [2013] FamCA 1126

FAMILY LAW – CHILDREN – Final orders by consent

FAMILY LAW – PROPERTY – Final orders by consent.

Family Law Act 1975 (Cth)

APPLICANT: Mr Telford

RESPONDENT: Ms Telford

FILE NUMBER: MLC 9259 of 2011

DATE DELIVERED: 2 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 2 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kanarev

SOLICITOR FOR THE APPLICANT: Alphastream Lawyers

COUNSEL FOR THE RESPONDENT: Mr Weerappah

SOLICITOR FOR THE RESPONDENT: Bayside Solicitors

ORDERS

IT IS ORDERED BY CONSENT THAT

CHILDREN

1. The Applicant Father (“Father”) and Respondent Mother (“Mother”) have equal shared parental responsibility for the child R, born … 2008 (“Child”).

2. The Child live with the wife.

3. The Father spend time and communicate with the Child as follows:

   (a)Commencing 3 May 2013 each alternate weekend from 5.00 pm Friday until 9.00 am Monday morning;

   (b)When the Child commences school in 2014, for four consecutive nights during the school holidays and in default of agreement is to occur in the first half from 10.00 am Saturday until 10.00 am Wednesday;

   (c)For the 2014/2015 long school summer holiday period and each year thereafter from 10.00 am 24 December until 10.00 am 3 January;

   (d)When the Child reaches seven years of age the Child is to spend five nights from a fourteen day cycle from after school Friday until the commencement of school the following Wednesday;

   (e)At other times as agreed.

4. Changeover to occur at the Child’s kindergarten or school during school term and during school holiday periods at the McDonalds Family Restaurant, Suburb C or at any other place as agreed and the parties be at liberty to nominate an agent to act on their behalf to be there.

5. The parent who is not currently spending time with the Child be permitted to contact the Child by telephone twice a week, being a Tuesday and Thursday between 7pm and 7:30 pm and that one call to be made only.

6. In relation to paragraph 5 of these orders, the Father is to provide the Child with his own mobile telephone and to ensure it has sufficient funds for the purposes of the call and the Father and Mother are to facilitate the call, including the phone be charged, and not interfere with the Father’s or Mother’s time when speaking with the Child on his phone and neither party is to use the phone for any other purpose than the Child’s use of it.

7. The Child be reasonably permitted to contact either parent at his request.

8. Each Father’s Day the Child is to spend with the Father from 10.00 am to 5.00 pm if the day falls on a day when the Child is scheduled to spend time with the Mother.

9. Each Mother’s Day the Child is to spend with the Father from 10.00 am to 5.00 pm if the day falls on a day when the Child is scheduled to spend time with the Father.

10. On the Child’s birthday and in the event that the Mother would not otherwise have the Child, the Child is to spend time with the Mother from 4.00 pm until 7.00 pm.

11. On the Child’s birthday and in the event that the Father would not otherwise have the Child, the Child is to spend time with the Father from 4.00 pm until 7.00 pm.

12. Each parent:

    (a)is to inform the other as soon as practicable of any serious illness, injury or issue that may befall the Child and the name of any treating medical practitioner and each parent is permitted to obtain the usual information that a parent is entitled from that practitioner;

    (b)keep the other informed of medical issues relating to the Child including medical appointments;

    (c)be at liberty to attend such appointments;

    (d)ensure that the Child is administered any medication prescribed;

    (e)is to be consulted in relation to any surgical or major medical procedure relating to the Child;

    (f)is able to receive any copies of school notices, reports and letters normally available to parents;

    (g)be at liberty to attend any functions at either the school or kindergarten as well as extra-curricular occasions which parents are normally permitted to attend;

    (h)is to inform the other of any proposed change of address and change of telephone number;

13. The Child is at liberty to take any toys he wishes between the respective households and such toys be returned.

14. Each parent to provide for the Child in relation to appropriate clothing which the Child is in their respective care and return these items following the completion of time with the parent.

15. The Child is attending J School for his primary education.

16. The parents to endeavour to reach agreement in relation to the Child’s secondary education and if they are unable to agree the parties are to attend mediation in an attempt to resolve the matter and this is to take place no less than one year prior to the child being scheduled to attending secondary school.

17. The parties to use a communication journal to inform the other parent of the Child’s needs and the journal to travel with the parents between the parents.

18. Without admission, each party and their servants and agents be and are hereby restrained from:

    (a)denigrating the other (or family members of the other party) to or in the presence of the Child;

    (b)physically disciplining the Child;

    (c)discussing parenting disputes and/or issues with or in the presence of the Child;

    (d)passing messages through the Child;

    (e)unreasonably questioning the Child about what is happening with the other party;

    (f)involving the Child in any form of dispute that may arise between the parties;

    (g)committing family violence as defined in the Family Law Act against the other;

    (h)consuming alcohol to excess 12 hours before spending time with the Child and while the Child is in their respective care.

1. Any ongoing dispute that may arise in relation to these orders is to be brought to roundtable dispute management to endeavour to reach resolution.

2. That all previous parenting orders made before this date are discharged, save the watch list order made in paragraph 18 & 19 on 29 November 2012.

3. Certify for Counsel.

4. Sections 65DA(2) and 62B apply.

AND THE COURT NOTES BY CONSENT THAT

A.The Father intends to return the Child to the B Contact Centre on Sunday 5 May 2013 at 5pm.

B.In an endeavour to resolve this matter on a final basis, the wife intends to withdraw her interim intervention order application at the Melbourne Magistrates’ Court within 48 hours of these orders being made.

C.As soon as practicable and no later than 72 hours from the date of these orders the wife is to inform the Child Support Agency as to the change in her financial circumstances.

PROPERTY

1. The Orders made by the Family Court at Melbourne the 29^th November 2012 on financial matters be discharged.

2. The husband forthwith do all such acts and things and sign all such documents as may be required to transfer to the wife at the expense of the wife all of his right, title and interest in the real property situate at and known as L Street, Suburb C (“Suburb C”).

3. The wife to henceforth indemnify the husband against all payments and liabilities pursuant to the mortgage registered as number … with IMB and be solely responsible for all rates, taxes and like outgoings of the real property as they fall due and any arrears.

4. In the event that the wife is not able to refinance the loan to IMB referred to in paragraph 3 herein on or before close of business on 16 June 2013, then the Suburb C property is to be sold and the husband and wife are forthwith do all acts and things and sign all necessary documents to effect the sale of the property and it is agreed:

   (a)The property shall be listed for sale with I Pty Ltd, Suburb K, upon the following terms:

   (i)A Vendor’s price as noted in an exclusive sales authority of $550,000 -$610,000;

   (ii)An exclusive authority period of 60 days and a continuing authority of 60 days and continuing authority period of Nil days;

   (iii)Property to be sold with vacant possession;  and

   (iv)An agent’s commission sum of 1.65 per cent of the sale price and agreed advertising expense of $1,200.00 and the husband and the wife shall both sign an exclusive sales authority to that effect within seven days of 16 June 2013.

   (b)In the event that the property fails to be sold by private treaty within 60 days then the real property is to be sold at auction listed on the closest Saturday to 30 days after the expiry of the exclusive authority period with a reserve of $550,000 and each party is to take all necessary steps and execute all necessary documents to cause the property to sold by auction.

   (c)The husband and wife each shall co-operate in every way with the agent(s) including:

   (i)Making the key(s) available to the agent(s);

   (ii)Allowing inspection of the property at all reasonable times requested by the agent(s);

   (iii)Ensuring the property and the grounds are in a neat and clean condition at the time of inspection by the agent(s) and prospective purchasers.

   (d)The parties each shall execute a contract of sale in the form prepared by the solicitors having conduct of the sale which will be a solicitor agreed to by the parties and failing agreement a solicitor nominated by the President of the Law Institute of Victoria or his or her nominee.

   (e)Upon completion of the sale of the property the wife will provide vacant possession, remove all items not included in the sale and ensure that the property is left in a clean and tidy condition.

5. Following completion of the sale the proceeds are to be applied:

   (a)First, to pay all costs, commissions and expenses of the sale;

   (b)Second, to discharge the mortgage and any encumbrance affecting the real property;

   (c)Third, the balance on a sale of up to $550,000 to be provided to the wife; any monies greater than $550,00 are to be divided in the proportion of:

   (i)60 per cent to the wife;  and

   (ii)40 per cent to the husband.

6. The wife hereby assumes all financial responsibility for mortgage encumbering the motor vehicle registration number … and will be liable to pay all further instalments of $548.56 as they fall due by the 25^th of each month and by close of business on 16 June 2013 the wife agrees to pay out the existing loan on the motor vehicle owed to Macquarie Leasing.

7. In the event that by the due date the wife is unable to settle the existing loan on the motor vehicle referred to in paragraph 6 of these orders, the wife shall then transfer all of her right, title and interest in that vehicle over to the husband, at the expense of the husband, and the husband shall be solely responsible for the loan remaining on the motor vehicle and the wife to leave the vehicle at the Suburb K Police Station in a good working order and condition along with all keys which are to be handed over at the Police Station. 

30.In the event that either party fails to or refuses to sign any document to give effect to paragraph 4 and paragraph 7 of these orders, then within 7 days of a request in writing to do so a Registrar of the Melbourne Registry of the Family Court of Australia be and is hereby appointed to sign such document on behalf of that party pursuant to s 106A of the Family Law Act1975 (Cth).

1. By 4.00 pm 9 May 2013 the husband provide to the wife withdrawals of the caveats lodged on behalf of:

   (a)the husband; and

   (b)       C-Stone Project Ltd trading as Alphastream Lawyers.

2. Each party is to retain the value of their respective superannuation entitlements.

3. Each party be solely entitled to the exclusion of the other of all non-real property (including choses-in-action) owned by or in the possession of such party as at the date of these orders.

4. Monies, if any, standing to the credit of the parties in any joint bank account are to be divided equally and both parties sign all documents to close any such accounts.

5. 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.

6. Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

7. This is an order to which s 77A of the Family Law Act 1975 (Cth) applies.

8. Certify for counsel.

9. The application of the husband filed on 13 October 2011 is otherwise dismissed.

AND THE COURT NOTES BY CONSENT
That the parties intend that these orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

IT IS ORDERED BY THE COURT THAT

1. All extant applications be otherwise dismissed and the matter removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Telford & Telford (No 2) 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 MELBOURNE

FILE NUMBER: MLC 9259 of 2011

Mr Telford

Applicant

And

Ms Telford

Respondent

REASONS

1. This matter, which has been listed for final hearing before me, involves both parenting and financial issues.  I have some familiarity with the matter as I have dealt with it on previous occasions.  The parenting issues concern the one child of the marriage, R born in 2008, who is now four and a half years of age.  The parties have reached agreement with respect to the parenting arrangements for their son, which take into account and are consistent with the recommendations of the family consultant who has prepared a report in this matter.  I am satisfied that the orders they propose are in the child’s best interests.

2. These proceedings commenced in what is now the Federal Circuit Court of Australia, before being transferred to this Court on the basis of their complexity.  Whilst the issues in dispute are not particularly complex, the proceedings themselves have been lengthy and hard‑fought by both parties.  That has been, no doubt, at a significant financial and emotional cost to the parties and their son.  The unfortunate aspect of this case, or at least that part of it that relates to the financial issues, is that the parties were ultimately fighting over a very limited pool of assets.

3. Although the proceedings have been protracted, the parties are to be congratulated on having reached a final agreement which is intended to end their financial relationship.  I also commend their legal practitioners for their assistance in resolving this matter.  As I have already said, I have some familiarity with the matter and I have read the affidavits upon which the parties sought to rely in relation to this final hearing.  In all of the circumstances, I am satisfied that it is just and equitable to make orders for property settlement and that the orders proposed by the parties with respect to the financial matters are just and equitable.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 2 May 2013.

Associate: 

Date:  21 May 2014