Garman & Jackson (No 2) [2013] FamCA 1142 (5 August 2013)

Last Updated: 5 February 2015

 

FAMILY COURT OF AUSTRALIA

 

 

 

 

 

 

 

 

 

 

 

REPRESENTATION

 

 

 

 

 

 

ORDERS

IT IS ORDERED BY CONSENT

1. THAT all extant Parenting Applications be adjourned for mention at 9am on Friday 14 February 2014.
2. THAT until further order, the husband spend time with the child of the marriage, B born … 2002 (“the child”) as follows:-
   (a) On a supervised basis for a period of 5 months with such time to be supervised by a supervisor nominated by the Manager of D Services and as follows:-
   • (i) For a period of not more than 3 hours per visit

(ii) For all times to be a directed the supervisor; (iii) For the first 3 months on a fortnightly basis commencing 10 August 2013, if practicable; (iv) And thereafter for 2 months on a weekly basis; (v) And thereafter for period not exceeding 5 hours on each Saturday unsupervised at times agreed and failing agreement from 10am until 3pm on each Saturday with changeovers to occur at McDonalds Family Restaurant, Suburb E. (vi) The wife and her nominee will deliver and collect B from this contact (b) As otherwise agreed or recommended by Mr F (“Family Consultant’) AND FURTHER the child is to spend a 3 hour supervised visit with the husband and the paternal grandparents during this period of time. (c) The husband’s time with the child pursuant to these Orders will be suspended for 3 weeks during the January 2014 holidays while the parties and child travel to Country J for no more than 2 weeks and the husband shall then commence time on their return.

3. THAT for the purposes of paragraph 3 hereof the following shall apply:-
    3.1 The parents shall do all acts and things necessary to comply with all reasonable directions of D Services.

3.2 The costs of supervisions shall be borne by the husband with such costs to be reserved for further consideration of the court in the event of a breakdown of supervised arrangements. 3.3 The parents and the child shall do all acts and things necessary to attend upon the Family Consultant for the purposes of non-reportable counselling and therapy so as to assist the child with any adjustments required to facilitate her ongoing relationship with the husband with all costs to be shared equally. 3.4 The wife use her best endeavours to encourage and to facilitate a relationship between the husband and the child. 3.5 In the event of changeovers not facilitated by the supervisor the parents shall not enter into adverse discussions. 3.6 In the event of a breakdown of the parenting arrangements the parents with the child shall attend forthwith upon Dr N as directed for the preparation of a further up-dated report with the costs to be shared equally AND FURTHER to assist with the preparation of the said report, Dr N be at liberty to liaise with the Family Consultant and report accordingly. 3.7 The Independent Children’s Lawyer shall provide the supervisor with copies of the following reports:-

4.  (i) The reports of Dr N dated 27th February 2012 and 31st July 2013 (ii) The report of Dr K filed 10th May 2012 (iii) The reports of Mr G dated 6th and 21st September 2012 and 8th November 2012 (iv) The Affidavit of the Family Consultant filed 2nd July 2013 (v) The DOHS Report dated 21st February 2012

3.8 Within 48 hours of the date of these Orders the Independent Children’s Lawyer shall contact the supervisor and advise him or her of the obligations in terms of the supervision AND FURTHER require the supervisor to file a written undertaking with the Court prior to the commencement of supervised times. 3.9 Each party be and are hereby restrained by himself or herself as follows:-

5.  (i) From denigrating, belittling, or insulting the other parent to the child or in her presence or hearing (ii) Save for the time arrangements from discussing these proceedings with the child in her presence or hearing. (iii) From abusing the child or exposing the child to any court documentation. (iv) From permitting any third party to assist non-compliance with this order.
4. THAT paragraphs 8, 9 and 10 of the Orders made 22 November 2011 be discharged.
5. Liberty to apply at short notice.
6. Certify for counsel.
7. THAT pursuant to s 65DA(2) and s 62(B) of the Family Law Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATION:

1. In the event that the wife refuses, fails or neglects to comply with these Orders, the Independent Children’s Lawyer intends to give serious consideration as to whether a change of residence will meet the best interests of the child.
2. In the event of non-compliance of these Orders, the husband intends to consider amending his Response to seek residence of the child and the wife can seek to vary the Orders.

100. In respect of the commencement of time between the husband and child B pursuant to Order 1, unless otherwise advised by Ms D, the following procedures are to be adopted:-
      (a) The husband and wife are to forthwith provide addresses, telephone numbers to Ms D (Ph – 0407 365 256) and to forthwith complete all forms requested by Ms D.

(b) Unless otherwise advised by Ms D the wife and the child B will attend an intake session with Ms D or her nominee at 1.30pm on 10 August 2013 and the time between the husband and child will commence at 2pm on 10 August 2013.

4. Reports are to be issued by D Services and forwarded to both parties in due course.
5. With all costs to be borne by the husband.

PROPERTY ORDERS

IT IS FURTHER ORDERED BY CONSENT BY WAY OF PART PROPERTY SETTLEMENT

1. THAT the husband and wife shall do all such acts and things and sign all such documents in order that the former matrimonial home situated at H Street, Suburb I (“the property”) be forthwith placed on the market and then sold at auction.
2. THAT the proceeds of sale be applied as follows:-
    (a) Firstly to pay all costs, commissions and expenses of the sale of the property

(b) Secondly to discharge the mortgages held by the Commonwealth Bank of Australia and any other encumbrance affecting the real property (c) Thirdly the balance then remaining be divided in the proportion of:-

3.  (i) 45 per cent thereof to the husband (ii) 55 per cent thereof to the wife
3. THAT pending the sole of the property:-
    (a) The wife have the sole right to occupy the real property and that during such right of occupation both parties pay the mortgage and rates/taxes in equal shares and pay all instalments pursuant to the mortgage and the like apportionable outgoings of the property as they fall due.

(b) The parties hold their respective interests in the property upon trust pursuant to these Orders. (c) Neither party encumber the property without the consent in writing of the other party.

4. THAT within 14 days the wife and husband appoint Ray White Real Estate Agent to undertake the sale of the property and inform the husband as to the real estate agent and the wife hereby authorizes the husband to communicate with such Real Estate Agent.
5. THAT the property be sold at auction with a reserve price to be set at $680,000 or otherwise as directed by the selling Real Estate Agent.
6. THAT the husband transfer to the wife half of the property locates at Re.Sy.No…. of K Town, L District (“the Country J property”) within 180 days of the date of these Orders and the parties sign all documents and do all things necessary in order to facilitate the transfer of land.
7. THAT unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders.
    (a) Each party be solely entitled to the exclusions of the other to all property (including choses-in-action) in the possession of such party as at the date of the Orders.

(b) Any monies standing to the credit of the parties in any joint bank account either in Australia or Country J is to become the property of the parties’ daughter, B.

8. THAT in the event that the husband or wife refuses or neglects to execute a deed and/or instrument in compliance with the provisions of these Orders the Registrar or Deputy Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to S106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of the party refusing or neglecting to sign such deed and/or instrument.

NOTATION:

1. The husband and wife intend the following:
    (a) That these property orders are a full and final settlement of the property issues in dispute between them.

(b) That neither party will raise any further claim against the other party in respect of any self-acquired or ancestral property of that party in either Australia or Country J.

2. That the husband agree to pay to the wife one half of all school fees for their child B and incidentals such as camp fees, uniform costs, school materials such as laptops, textbooks, exercise books and stationary, choir fees and fees for any other school selected activities undertaken by the child, B upon the production of an invoice by the wife to the husband whereupon the husband shall pay one half of such school fees and extra- curricular activities within 14 days.

100. THAT the husband shall apply to have his Superannuation company transfer an amount to be ascertained to accomplish a 50/50 split as at 5 August 2013 from his Superannuation to the wife’s superannuation and the parties do all such acts and sign all documents in order to facilitate such a transfer.

IT IS FURTHER ORDERED THAT

9. The matter be adjourned for mention at 9am on 27 August 2013.

 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garman & Jackson (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FILE NUMBER: MLC 9125 of 2011

Applicant

And

Respondent

REASONS

1. The husband was born in 1972 and he is 41 years of age. The wife was born in 1973 and is 40 years of age. The parties were married in 2001 and separated in June 2011. There is one child of their marriage, B, who was born in 2002 and who is now 11 years of age. I have already today made orders with respect to the arrangements for B.
2. The husband is employed on a contract basis at University M and the wife is also employed. The asset pool is made up primarily of the former matrimonial home at H Street, Suburb I, which is worth $680,000 and is subject to a mortgage of $333,000. The other asset is a property in Country J, which is in the husband’s name, but there is an unresolved issue as between the parties as to how that property was acquired. It is the wife’s case that her family paid a dowry to the husband upon their marriage which was used to purchase the property. This is disputed by the husband who says it was purchased out of his savings.
3. The parties also have superannuation entitlements. I have been told that the husband has superannuation of approximately $167,000 and the wife’s superannuation entitlements are approximately $76,000. The other issue, the subject of some dispute between the parties, was the wife’s savings which at separation were agreed to be $95,000 and how the wife has applied those moneys since separation.
4. Notwithstanding those issues about which the parties do not agree. The parties have presented a minute and they seek to have orders made by way of part property settlement with respect to all of the agreement they have reached, save and except in relation to a split of their superannuation entitlements. They will need to formally draft an order for that superannuation split and they will need to provide procedural fairness to the trustee of the superannuation fund by the provision to the trustee of the draft of the proposed order.
5. Essentially, the agreement the parties have reached is that there will be a 55/45 per cent split in the wife’s favour of the proceeds of sale of the former matrimonial home. The husband is to transfer half the Country J property to the wife and there is to be an equal split of their superannuation entitlements.
6. Whilst there is some disagreement between them, they have agreed that this is a practical and appropriate settlement. Their contributions would appear to be approximately equal. However, there are adjustments pursuant to s 75(2) in relation to a number of matters, including the husband’s health, the fact that his employment is on a contract only, the money that the wife had at separation and significantly the wife’s ongoing responsibility for the care of B.
7. I am satisfied that, in all of the circumstances of this case, it is just and equitable to make orders and that the orders that are proposed are themselves just and equitable.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 5 August 2013.

Associate:

Date: 18 September 2014