Walker & Walker

[2009] FamCA 408

FAMILY COURT OF AUSTRALIA

WALKER & WALKER [2009] FamCA 408

FAMILY LAW – CONSENT ORDERS

APPLICANT: Ms Walker

RESPONDENT: Mr Walker

FILE NUMBER: MLC 3980 of 2009

DATE DELIVERED: 19 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Armstrong Collins & DeLacy

SOLICITOR FOR THE RESPONDENT: Slater & Gordon

BY CONSENT IT IS ORDERED:

1. The Husband and the Wife retain equal shared parental responsibility for … born the … October, 2000 (“the child”).

2. The child live with the Wife.

3. The child spend time with the Husband as follows:

   3.1each alternate weekend from Saturday afternoon to Sunday afternoon commencing the weekend after the Husband vacates the real property pursuant to Order 7.4 hereof;

   3.2each Wednesday from 6.00 pm to the commencement of school (or 9.00 am) on the following Thursday;

   3.3from 5.00 pm on the Saturday preceding Father’s Day to 5.00 pm on Father’s Day;

   3.4        on the child’s birthday in October in each year:

   (a)      if it is a school day, from after school to 8.00 pm; or

   (b)      if it is a non school day, for four hours at a time to be agreed.

   3.5        on the … September in each year:

   (a)      if it is a school day, from after school to 8.00 pm; or

   (b)      if it is a non school day, for four hours at a time to be agreed.

   3.6(a)      until the child commences secondary school, from 3.00 pm on the 25^th December to 3.00 pm on the 26^th December each year;

   (b)in the child's first year of secondary school and each alternate year thereafter from 3.00 pm on the 24^th December to 3.00 pm on the 25^th December;

   (c)in the child's second year of secondary school and each alternate year thereafter from 3.00 pm on the 25th December to 3.00 pm on the 26th December.

3.7for one week of the long summer vacation on four week’s notice in writing to the Mother;

3.8by telephone at all reasonable times; and

3.9as otherwise agreed between the Husband and the Wife.

1. Orders 3.1 and 3.2 be suspended for up to one-half of each short school vacation and the long summer vacation on the Wife giving the Husband four week’s notice in writing. The Husband will have priority for holiday time pursuant to Order 3.7 in the long summer vacation.

2. If Mother’s Day occurs on a weekend when the child would otherwise be with the Father, time with is suspended for that weekend.

3. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

4. Contemporaneously and on or before 60 days from the date of these Orders (“the date”):

   7.1the Wife to pay the Husband $46,680.00;

   7.2the Wife will procure the discharge of the Commonwealth Bank Mortgages Numbered … and … (“the Mortgages”);

   7.3the Husband and Wife will sign all documents and do all things necessary to:

   (a)transfer to the Wife (“the transfer”) the real property situate at and known as R being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the real property”); and

   (b)discharge the Mortgages.

7.4the Husband will vacate the real property; and

7.5the Wife will transfer caravan registered number … to the Husband.

1. Pending the transfer the Husband and the Wife be entitled to occupy the real property and the Husband pay all rates, taxes and apportionable outgoings and the instalments on the Mortgages. The Husband will not access available funds in any Mortgage Account or cease payment of the instalments due on the Mortgages such that any redraw is applied to the Mortgage instalments.

9.1The Husband will forthwith provide to the Wife all documents necessary for the Wife to resign as an officeholder in G Pty Ltd, CAN … (“the company”) and transfer her share in the company to the Husband. The Wife will provide the signed Resignation and Transfer to the Husband within 14 days of receipt.

9.2The Husband will indemnify and keep indemnified the Wife in respect of any liability attaching to the Wife by virtue of her having been an officeholder of the company.

10.1That a base amount of $35,000.00 is allocated, as required by s.90MT(4) of the Family Law Act 1975, to the wife out of the husband’s interest in the CBus Superannuation Fund (“the CBus Fund”).

10.2That, in accordance with section 90MT(1)(a) of the Family Law Act 1975:

(a)The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

(b)The husband’s entitlement, and the entitlement of such other person to whom a splittable payment may be made to payments out of the husband’s interest in the CBus Fund, is correspondingly reduced.

10.3That the trustee of the CBus Fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

(a)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife by clause 10.2 of this order; and

(b)pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the CBus Fund.

10.4That this order have effect from the operative time and the operative time is four (4) days from service of this order on the trustee.

10.5That, after service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 for the creation of a new interest in the wife’s name in the CBus Fund.

10.6That the Court notes:

(a)The value of the transferable benefits from the husband’s interest to the wife’s interest are calculated in accordance with r.7A.11 of the Superannuation Industry (Supervision) Regulations 1994;

(b)Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the husband’s superannuation interest in the CBus Fund made after the trustee has created a new interest in the wife’s name in the CBus Fund, as contemplated in clause 10.5 of this order, are not splittable payments;

(c)The trustee will be relieved of its obligations to calculate and split payments under clause 10.3 of this order in the event that a new interest is created in the name of the wife in accordance with the requirements under the Superannuation Industry (Supervision) Regulations 1994.

1. That unless otherwise specified in these Orders and save for the purposes of enforcing any moneys due under these or any subsequent orders:

   11.1Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the Husband and Wife as agreed).

   11.2Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.

   11.3Insurance policies remain the sole property of the owner named therein.

   11.4Each 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.

   11.5Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

AND THE COURT NOTES:

A.That the parties intend these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.

B.The Husband and Wife contemporaneously with the signature of these Consent Orders will sign a Binding Financial Agreement pursuant to which the Husband and the Wife will, in consideration of the Orders made herein, relinquish their entitlement (if any) to Spousal Maintenance.

C.Subject only to Orders 3.6, 4 and 5 hereof, Orders 3.1 and 3.2 are intended to continue during school holidays.

IT IS NOTED that publication of this judgment under the pseudonym Walker & Walker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3980 of 2009

MS WALKER

Applicant

And

MR WALKER

Respondent

REASONS FOR JUDGMENT

1. This is a matter transferred to me in Chambers by a Registrar after the parties and their lawyers attended the Court and reached a compromise in respect of financial matters.

2. I have been asked to make these final orders.

3. There is some disagreement about the pool of assets for division but that is modest.  On the material, the parties have few assets.

4. I have read the file documents made available to me and whilst each party has a different approach to the assessment of their contributions, the difference is not large.

5. The parties were married in November 1996 and separated on 15 January 2008.  There is one child of the marriage who lives with the wife.

6. The adjustment between the parties takes into account their respective contributions and the factors set out in s75(2) of the Family Law Act 1975.

7. Both parties have been represented by lawyers who have prepared the documents before me.

8. In all of the circumstances, I am satisfied that these orders are just and equitable.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date:   19 May 2009