TRITTON & DUCATTI - [2019] FamCA 663

FAMILY COURT OF AUSTRALIA

TRITTON & DUCATTI

[2019] FamCA 663

FAMILY LAW – PROPERTY – third party interests – where the wife holds two items of real estate on trust for her husband and his father’s in their capacity as partners and as directors and shareholders of a building company – where the husband and wife have a 50% interest in the net value of the two items of real estate the subject of the dispute.

FAMILY LAW – PARENTING – significant and substantial time with the father.

Conveyancing Act 1919 (NSW) s 23C(1)

Family Law Act 1975 (Cth) s 75(2), 79
Real Property Act 1900 (NSW) s 57(2)(b)

Allan v Snyder (1977) 2 NSWLR 685

Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495
Dunphy v Russell (2018) NSWSC 721

Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62

APPLICANT:

Mr Tritton

RESPONDENT:

Ms Ducatti

INTERVENOR:

Mr E Tritton

FILE NUMBER:

SYC

6271

2016

DATE DELIVERED:

20 September 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

3, 4, 5, 6, 7 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harper

SOLICITOR FOR THE APPLICANT:

Douros Jackson

COUNSEL FOR THE FIRST RESPONDENT:

In person

COUNSEL FOR THE SECOND RESPONDENT:

Mr Weinberger

SOLICITOR FOR THE SECOND RESPONDENT:

York Law Family Law Specialists

Orders

All previous parenting orders are discharged.
The parties have equal shared parental responsibility for the children Y born …2014 and X born … 2013.
The children live with the mother.
The children spend time with the father as follows:
(a)       Until Y commences formal school:
(i)In week one, from after preschool/school Friday until 7:30pm on Monday, and each alternate week thereafter; and
(ii)In week two, from after preschool/school Thursday to the commencement of preschool/school on Friday, and each alternate week thereafter.
(b)       Commencing when Y begins formal school:
(i)In week one, from after school on Friday until the commencement of school on Monday, and each alternate week thereafter; and
(ii)In week two, from after school on Thursday to the commencement of school on Friday, and each alternate week thereafter.
(c)       Commencing when Y begins second term in 2020:
(i)In week one, from after school Thursday until the commencement of school on Monday, and each alternate week thereafter; and
(ii)In week two, from after school Thursday until the commencement of school on Friday, and each alternate week thereafter.
(d)       Commencing from the second term in 2021:
(i)In week one, from after school Thursday until the commencement of school on Tuesday, and each alternate week thereafter; and
(ii)In week two, from after school Thursday until the commencement of school Friday, and each alternate week thereafter.
For the remainder of 2019, the children are to spend time with their father in the term school holidays for a continuous period of seven days commencing from Friday after school to the following Friday morning, otherwise they spend the holidays with their mother.
For Christmas 2019-2020, the children spend seven days, in each parent’s…

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 TRITTON & DUCATTI

Details

AGLC: TRITTON & DUCATTI [2019] FamCA 663
Case: [2019] FamCA 663
Decision Date: 20 September 2019

CaseChat Overview and Summary

This case concerned a dispute between a husband and wife regarding property and parenting arrangements for their two children. The wife held two properties on trust for the husband and his father, who were partners and directors/shareholders of a building company. The husband and wife each held a 50% interest in the net value of these properties.

The court was required to determine the appropriate parenting orders for the children, including the allocation of parental responsibility and the specific time each parent would spend with the children. Additionally, the court needed to address the property interests, specifically the wife's beneficial interest in the two real estate properties held on trust, and make final property alteration orders.

Henderson J discharged previous parenting orders and established equal shared parental responsibility. The children were ordered to live with the mother, with detailed provisions for the father's time with them, which varied over time as the children aged and commenced formal schooling. The court also declared that the wife held the Suburb G and Suburb D properties on trust for the husband and his father. Final property orders included the wife vacating the Suburb G property upon payment of $50,000, followed by a further payment of $513,800 to the wife once the mortgage on the Suburb D property was discharged or her liability extinguished. The parties were to indemnify each other for liabilities in their respective names, and each was to retain their personal property, with specific items of personalty allocated to the husband.

Orders

Orders of the court

All previous parenting orders are discharged.

The parties have equal shared parental responsibility for the children Y born …2014 and X born … 2013.

The children live with the mother.

The children spend time with the father as follows:

(a) Until Y commences formal school:

(i) In week one, from after preschool/school Friday until 7:30pm on Monday, and each alternate week thereafter; and

(ii) In week two, from after preschool/school Thursday to the commencement of preschool/school on Friday, and each alternate week thereafter.

(b) Commencing when Y begins formal school:

(i) In week one, from after school on Friday until the commencement of school on Monday, and each alternate week thereafter; and

(ii) In week two, from after school on Thursday to the commencement of school on Friday, and each alternate week thereafter.

(i) In week one, from after school Thursday until the commencement of school on Monday, and each alternate week thereafter; and

(ii) In week two, from after school Thursday until the commencement of school on Friday, and each alternate week thereafter.

(d) Commencing from the second term in 2021:

(i) In week one, from after school Thursday until the commencement of school on Tuesday, and each alternate week thereafter; and

(ii) In week two, from after school Thursday until the commencement of school Friday, and each alternate week thereafter.

For the remainder of 2019, the children are to spend time with their father in the term school holidays for a continuous period of seven days commencing from Friday after school to the following Friday morning, otherwise they spend the holidays with their mother.

For Christmas 2019-2020, the children spend seven days, in each parent’s care, with the mother to have the first period of time and the father the second week of the holidays and to alternate each week thereafter.

The father to spend time with the children at Christmas 2019 from 5pm Christmas Eve to 5pm Christmas Day and, the children to spend from 5pm Christmas Day to 5pm Boxing Day with their mother, otherwise the week-about arrangement is to continue. The parties may vary these times to allow the mother, for example, to take the children to Melbourne to visit their family and provided the father’s time with the children is not diminished, the parties may vary these orders by consent.

Thereafter, for all mid-term school holidays, the children spend one half of each school holiday period with their parents, being with the father for the second half in 2020 and the first half in 2021, and alternating thereafter and the mother at the other times.

For Christmas holidays 2020-2021, the children to spend time with their parents on a two-week arrangement, being with the father for the first period for two weeks, for the mother for the following two weeks, and the remainder of the school holidays to be equally shared between their parents, with the father to have the first portion and the mother the second portion.

10.

For Christmas 2020-2021, the mother to have time with the children from 5pm Christmas Eve to 5pm Christmas Day, and the father to have time with the children from 5pm Christmas Day to 5pm Boxing Day.

11.

For Christmas school holidays and the Christmas day period commencing 2021- 2022, the children to spend one half of the holidays with each parent, being with the father in the first half commencing 2021 and each odd year thereafter, and the mother the first half in 2022, and each even year thereafter.

12.

The children to spend the day of Father’s Day with the father, unless they are otherwise living with him; and the children to spend the day of Mother’s Day with their mother, unless otherwise living with her from 9am until 6pm.

13.

In the event of the children’s birthday the father to spend time with the children for three hours on each of their birthdays in the event they are not living with him and similarly for the mother.

14.

The parties may take the children outside the Commonwealth of Australia for an overseas holiday, on the condition that they provide to the other, 28 days’ notice in writing of their intention to travel, a copy of the itinerary, return travel air flight and contact details whilst they are overseas.

15.

The parties may vary any of the parenting orders by agreement.

16.

The Court declares the respondent wife holds the following properties on trust for the applicant husband and second respondent:

(a) The property situated at and known as F Street, Suburb G in the State of New South Wales and being the whole of the land in Folio Identifier … (“the Suburb G property”); and

(b) The property situated at and known as H Street, Suburb D in the State of New South Wales and being the whole of the land in Folio Identifier … (“the Suburb D property”).

17.

The respondent wife do all things necessary to transfer to the applicant husband and second respondent as tenants-in-common all of her right, title and interest in the Suburb G property and the Suburb D property forthwith.

18.

Within four calendar months of the date of the respondent wife complying with Order 17, the applicant husband and second respondent do all things necessary to either discharge the mortgage secured over the Suburb D property or have the wife’s’ liability in respect of that mortgage extinguished.

19.

In default of the parties or any of them doing all acts and things and executing all such documents as necessary to give effect to these Orders, a Registrar of the Family Court of Australia at Sydney be appointed pursuant to section 106A to execute all documents in the name of the party in default and to do all such acts and things necessary to give validity and operation of the said Orders. In giving effect to this Order it is sufficient for the Registrar to proceed with and make Orders on the basis of the sworn affidavit evidence of the party seeking to invoke this Order, and that the party in default will pay the costs of the other party on an indemnity basis.

20.

Pursuant to Section 79 of the Family Law Act 1975 (Cth) (“the Act”) by way of final property alteration:

(a) Within 28 days the applicant husband shall pay to the respondent wife the sum of $50,000 and the wife is to immediately vacate the property at Suburb G upon payment of that money to her.

(b) Immediately upon the husband and second respondent’s compliance with order 18 the respondent husband shall pay to the wife the balance of monies owing to her being a sum of her $513,800.

(i) The respondent wife will pay as and when they fall due all statutory and consumable utilities in relation to the Suburb G property; and

(ii) The respondent wife will keep the Suburb G property in good order and repair, fair wear and tear accepted, and will permit the applicant husband access to the property seven days prior to her vacation of the Suburb G property.

(d) The applicant husband, L Pty Limited, and the partnership ‘Tritton Pty Ltd’ are hereby restrained from filing any amendment to the Income Tax Return for those entities for the period 2004 to 2017.

(e) When the respondent wife vacates the Suburb G property and removes all her possessions she is to the following items which are the husband’s:

(i) The pot in the driveway;

(ii) All fixtures and fittings;

(iii) Glass dining room table and four white leather chairs; and

(iv) All fittings and fixtures including but not limited to the ASKO Dishwasher and the SMEG freestanding oven.

(f) As between the applicant husband and the respondent wife, the applicant husband is solely entitled to the engagement ring, the wedding band and the RR ring.

(g) Other than provided for above:

(i) The applicant husband hereby indemnifies the respondent wife from and in respect of all actions, claims, suits and demands as may be made against the respondent wife in relation to all liabilities in the name of the applicant husband;

(ii) The respondent wife hereby indemnifies the applicant husband from and in respect of all actions, claims, suits and demands as may be made against the applicant husband in relation to all liabilities in the name of the respondent wife; and

(iii) The applicant husband and respondent wife shall be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession, ownership or control of each party as at the date of this Order including but not limited to superannuation entitlements.

(h) Subject to these Orders, the applicant husband shall retain to the exclusion of the respondent wife, all items of personalty in his possession, including but not limited to, motor vehicles, cash in bank accounts, superannuation, furniture and personal belongings.

(i) Subject to these Orders, the respondent wife shall retain to the exclusion of the applicant husband, all items of personalty in her possession, including but not limited to, motor vehicles, cash in bank accounts, superannuation, furniture and personal belongings.

(j) All previous financial orders be discharged to the date they stand paid.

21.

These orders have been amended pursuant to paragraph 17.02(1)(e) of the Family Law Rules 2004.

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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