FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Antonescu & Antonescu (No 2) [2024] FedCFamC1F 596
File number: SYC 1697 of 2023 Judgment of: CAMPTON J Date of judgment: 6 September 2024 Catchwords: FAMILY LAW – PROPERTY – MAJOR COMPLEX FINANCIAL PROCEEDING – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the husband made direct financial contributions – Where the husband’s parents’ corporation was gifted in stages to the husband and his brother equally, and the husband then acquired his brothers shares – Where the corporation provided income enabling the parties to accumulate significant wealth – Where the homemaking and parenting contributions of the wife are not to be undervalued – Where the husband’s contributions by way of the stewardship of the corporation by way of its improvement and development could not have been achieved without the contributions of the wife – Where the parties separated almost 10 years ago – Where the husband controlled the patrimony after separation – Where the husband has re‑partnered and utilised the property of the parties for the benefit of he and his new partner – Where the husband failed to adhere to his disclosure obligations including secreting property – Where those failures handicap findings as to the husband’s interest in property acquired with his new partner and resulted in property of the parties used by the husband after separation being unaccounted for – Orders made adjusting the property of the parties 52.5 per cent to the husband and 47.5 per cent to the wife. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6, r 3.01
Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Chang v Su (2002) FLC 93-117; [2002] FamCA 156
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Pierce & Pierce (1999) FLC 92-844; [1998] FamCA 74
Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Weir and Weir (1993) FLC 92-338; [1992] FamCA 69
Division: Division 1 First Instance Number of paragraphs: 238 Date of hearing: 26–29, 30 August 2024 Place: Sydney Counsel for the Applicant: Mr Cummings SC with Mr Weightman Solicitor for the Applicant: Long Saad Woodbridge Lawyers Counsel for the Respondent: Mr Lethbridge SC with Ms Dart Solicitor for the Respondent: King Cain Solicitors ORDERS
SYC 1697 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ANTONESCU
Applicant
AND: MR ANTONESCU
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
6 SEPTEMBER 2024
BY CONSENT THE COURT ORDERS THAT:
1.Within 90 days…
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- Antonescu & Antonescu (No 2) [2024] FedCFamC1F 596
- Case
- [2024] FedCFamC1F 596
- Decision Date
CaseChat Overview and Summary
The court had to determine the appropriate approach to assessing the financial contributions of both parties, particularly in light of the husband's undisclosed inheritances and post-separation acquisitions. The wife argued for a holistic assessment of contributions, while the husband advocated for a hybrid approach that separated pre and post-separation contributions. The court found that a holistic approach was more equitable in this case, considering the intertwining of assets and the husband's undisclosed financial dealings.
In its reasoning, the court emphasised the importance of justice and equity in property adjustments, rejecting the husband's approach due to its failure to account for the intermingling of assets and undisclosed financial dealings. The court concluded that the wife's contributions to the family's wealth, including her role in the husband's business, were undervalued and crucial to the overall accumulation of assets. The husband's post-separation inheritances, while significant, did not outweigh the wife's substantial contributions and the need for equitable distribution.
The final orders mandated the husband to pay an adjusting sum of $6,434,600 to the wife in instalments, with specific directions for property transfers, mortgage discharges, and the division of superannuation. The court also provided detailed instructions for the sale of shares, tax obligations, and the division of other assets, ensuring a fair and equitable distribution of the parties' property.
Orders
Orders of the court
SYC 1697 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS ANTONESCU
Applicant
AND:
MR ANTONESCU
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
6 SEPTEMBER 2024
BY CONSENT THE COURT ORDERS THAT:
1. Within 90 days of the making of these orders and simultaneously:
(a) The Husband shall do all acts and things and sign all documents necessary to transfer to the Wife all of his right title and interest in the property situate and known as R Street, Suburb S in the State of New South Wales contained in Folio Identifier … (the "Suburb S Property"), and the Wife shall thereafter retain the Suburb S Property to the exclusion of the Husband and the Wife will indemnify the Husband as against any future liability or debt associated with the Suburb S Property;
(b) The Husband shall do all acts and things and sign all documents to discharge of all mortgages and encumbrances presently registered over the Suburb S Property at the cost of the Husband;
(c) The Husband shall do all acts and things and sign all documents to discharge the mortgage from the National Australia Bank (BSB: … Account number: …46) at the cost of the Husband.
2. Pending the transfer of the Suburb S property per Order 1 above:
(a) the Husband shall be solely responsible for and pay as and when due and indemnify the Wife in respect of all rates, utilities and statutory outgoings, including but not limited to land tax and strata levies, for the Suburb S property;
(b) each party be hereby restrained from encumbering and/or dealing with their respective interest in the Suburb S property without prior written consent of the other party; and
(c) the Wife shall have the right of sole occupation and enjoyment of the Suburb S property and the Husband shall not enter upon the property.
3. Following the transfer of the Suburb S property per Order 1 above, the Wife shall be solely responsible for and pay as and when due and indemnify the Husband in respect of all rates, utilities, insurances and outgoings including but not limited to land tax and strata levies for the Suburb S property.
4. The parties forthwith instruct N Pty Ltd (“N Pty Ltd”) for the Antonescu Superannuation Fund ("the Fund") to complete such tax returns and Business Activity Statements for the Fund as may be outstanding.
5. The parties forthwith do all acts and things to cause the sale of all shares in listed companies held by the Fund.
6. Upon the sale of the shares in compliance with Order 5, the parties instruct N Pty Ltd to calculate any tax payable as a result of the sale of the shares referred to in Order 5 (“the anticipated tax”).
7. The parties cause a bank account to be opened in the name of the Fund (“the anticipated tax account”) and deposit an amount of cash into that account which is equivalent to the amount of the anticipated tax, with such cash to be paid to the Australian Tax Office upon assessment of tax payable by the Fund for the 2024/2025 financial year.
8. Pursuant to s 90XT(1)(b) of the Act, whenever a splittable payment becomes payable from the Fund, the Husband is to be allocated 100 per cent of the Wife’s interest in the Fund, calculated in accordance with Part 6 of the Regulations, and that there is a corresponding reduction in the entitlement that the Wife would have in the Fund but for these orders, and for this purpose:
(a) The operative time that this order shall take effect is 90 days after the making of these orders;
(b) This order binds the Fund Trustee;
(c) The parties shall, in their capacities as directors of the Fund Trustee, do all acts and things and sign all documents necessary to cause N Pty Ltd to:
(i) Calculate, in accordance with the requirements of the Act and the Regulations, the entitlement created for the Husband in accordance with these orders; and
(ii) Pay the entitlement to the Husband whenever the Fund Trustee makes a splittable payment out of the Wife's interest in the Fund.
9. Pursuant to s 90XT(1)(b) of the Act, whenever a splittable payment becomes payable from the Fund, the Wife is to be allocated 50 per cent of the Husband’s interest in the Fund (with the amount contained in the anticipated tax account to be excluded from the calculation of entitlements), calculated in accordance with Part 6 of the Regulations, and that there is a corresponding reduction in the entitlement that the Husband would have in the Fund but for these orders, and for this purpose:
(a) The operative time that this order shall take effect is 91 days after the making of these orders;
(b) This order binds the Fund Trustee;
(c) The parties shall, in their capacities as directors of the Fund Trustee, do all acts and things and sign all documents necessary to cause N Pty Ltd to:
(i) Calculate, in accordance with the requirements of the Act and the Regulations, the entitlement created for the Wife in accordance with these orders; and
(ii) Pay the entitlement to the Wife whenever the Fund Trustee makes a splittable payment out of the Husband's interest in the Fund.
10. Upon satisfaction of Order 9, the Wife shall roll out her interest in the Fund.
11. Within 7 days of the roll out of the Wife’s interest in the fund in accordance with order 11, the parties shall do all acts and things and sign all documents necessary to cause a meeting of the Fund to be held in accordance with the Rules of the Trust Deed for the Fund, and at this meeting:
(a) the parties shall do all acts and things and sign all such documents as may be necessary at the Husband’s cost for:
(i) the Wife to cease to be a member of the Fund;
(ii) the Wife resign as a director of the Fund Trustee; and
(iii) The Wife to transfer her shareholding in the Fund Trustee to the Husband.
12. Pending Orders 8, 9, and 10, each party is restrained from dealing with, charging, encumbering or disposing of any property of the Fund other than in accordance with these orders.
13. Within 14 days of the date of these orders the Husband shall do all things necessary to cause Motor Vehicle 1 to be transferred to the sole name of the Wife free from encumbrance and the Wife shall hereby indemnify and keep indemnified the Husband in relation to all liabilities in respect of the motor vehicle whenever and however arising.
14. Within 14 days of the date of these orders and unless otherwise provided in these orders, each of the parties do all acts and sign all documents necessary to cause all accounts held in their joint names with banks, credit unions or other financial institutions to be closed and any account balances in credit to be divided equally between the parties.
15. Except as specifically provided for by an order to the contrary, as against the Husband, the Wife is the sole owner of and the Husband has no interest in all other property, including superannuation, of whatsoever nature and kind in the name and possession of the Wife as at the date of the making of these orders, including but not limited to the following:
(a) Funds held in bank accounts (including the sale proceeds of the property at T Street, Town U);
(b) Shares; and
(c) Household contents and personal effects.
16. Except as specifically provided for by an order to the contrary, as against the Wife, the Husband is the sole owner of and the Wife has no interest in all other property, including superannuation, of whatsoever nature and kind in the name and possession of the Husband as at the date of the making of these orders, including but not limited to the following:
(a) Real estate, as follows:
(i) V Street, Town D NSW
(ii) W Street, Suburb X, NSW
(iii) B Street, Town D, NSW
(iv) 2 B Street, Town D, NSW
(v) Y Street, Town D, NSW
(vi) Z Street, Town AA, NSW
(vii) BB Street, Suburb CC, NSW
(viii) 1 DD Street, Suburb EE, NSW
(ix) 2 DD Street, Suburb EE, NSW
(x) FF Street, Town GG, QLD
(xi) Property P, USA
(b) Funds held in bank accounts;
(c) Shares in private and public companies;
(d) Household contents and personal effects; and
(e) The Husband's interest in the entities and trusts as follows:
(i) G Investments Pty Ltd;
(ii) H Pty Ltd;
(iii) F Pty Ltd;
(iv) Antonescu Investment Trust;
(v) Antonescu Investments Pty Ltd;
(vi) Antonescu Finance Pty Ltd; and
(vii) Antonescu Management Pty Ltd.
17. From the date of these orders, the Husband shall be solely responsible for and pay as and when due, and indemnify the Wife in respect of all companies and trusts in relation to which the Husband has an interest, including but not limited to the companies and trust set out at Order 16(e) above, in relation to all business expenses and liabilities including but not limited to income tax and any balance standing to the Wife’s name (in part or in whole) in any loan account referrable to any of the above entities.
18. As and from the making of these orders, the Wife indemnify the Husband and keep the Husband indemnified from and in respect of all actions, claims, suits and demands (past, present and future) in relation to any and all monies owing or payable whatsoever in the name of the Wife or for which she is responsible (including in her name, jointly or with any other person or entity) and including but not limited to monies payable for tax including any and all imposts and penalties or otherwise.
19. As and from the making of these orders, notwithstanding all other orders herein, the Husband shall be solely responsible for and pay as and when due and indemnify the Wife in respect of all liabilities which may arise in relation to F Pty Ltd, including but not limited to any liabilities to HH Finance.
20. As and from the making of these orders, the Husband indemnify the Wife and keep the Wife indemnified from and in respect of all actions, claims, suits and demands (past, present and future) in relation to any and all monies owing or payable whatsoever in the name of the Husband or for which he is responsible (including in his name, jointly or with any other person or entity) and including but not limited to monies payable for tax including any and all imposts and penalties or otherwise.
21. In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders then the Registrar of the court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
THE COURT FURTHER ORDERS THAT:
22. The husband pay to the wife $6,434,600 (the adjusting sum) by instalments as follows:
(a) On or before 7 March 2025, $3,500,000; and
(b) On or before 5 September 2025, the balance of $2,934,600.
23. The husband pay to the wife interest on such part of the adjusting sum as remains outstanding from 7 March 2025 until the date that the specified sum is paid in full calculated at the rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
24. Subject to the above orders, save as to costs, all outstanding Applications and Responses thereto are dismissed.
25. Should a party make an application for costs of or incidental to these proceedings, they are to file and serve within 28 days of the date of these orders an Application in a Proceeding specifying the orders sought as to costs and any affidavit in support thereof. In that event, orders will be made in chambers as to the filing of any Response to the Application in a Proceeding for costs and affidavit in support thereof, together with outlines and written submissions, with the costs application to be listed on a date to be fixed.
26. If neither party files an Application in a Proceeding pursuant to Order 25, any outstanding application for costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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