BARLOW & PURNELL

[2010] FamCA 406

FAMILY COURT OF AUSTRALIA

BARLOW & PURNELL [2010] FamCA 406

FAMILY LAW – CONSENT ORDERS –  Section 79(2) Just and Equitable

APPLICANT: MS BARLOW

RESPONDENT: MR PURNELL

FILE NUMBER: MLC 2566 of 2008

DATE DELIVERED: 22 FEBRUARY 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 22 FEBRUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Maeve O’Brien & Associates

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: Auditore Family Lawyers

Orders

IT IS ORDERED BY CONSENT:

PROPERTY

1. THAT as soon as practicable the  Wife sign all documents and do all things reasonably required to transfer to the Husband at the Husband’s expense the Telstra shares in the joint names of the parties.

2. THAT on or before 9 March 2010 (“the date”) the Wife pay to the Husband’s solicitors the sum of $983,673 (“the payment”).

3. THAT contemporaneously with the payment the Husband sign all documents and do all things reasonably required to transfer to the Wife at the expense of the Wife:

   (a)all of his right title and interest in the former matrimonial home being the real property situate at and known as P property and being the whole of the property more particularly described in Certificate of Title volume … folio … (“the former matrimonial home”);

   (b)The Barclays Bank (UK) and BICS (France) accounts and the money in those accounts; and

   (c)each party sign all documents reasonably required to discharge the mortgage upon the former matrimonial home.

4. THAT from the payment the sum of $119,473 (being 38.25% of the Wife's estimated potential tax liability of $312,349) be retained and held on trust by his solicitors, or alternatively, the solicitors for the  Wife, until the earlier of:

   (a)an amended notice of assessment of income tax issuing in the Wife's name for the 2007 financial year; or

   (b)1 July 2012 (being the end of the potential period of review of the Wife's 2007 income tax return).

5. THAT in the event of an amended notice of assessment of income tax issuing in the Wife's name for the 2007 financial year (“the amended assessment”) any amount payable by the Wife under the amended assessment whether by way of additional tax, penalties, interest or other charges (“the amount payable”) be apportioned between the parties in proportions of 38.25% to the Husband and 61.75% to the Wife, and the Husband do all such acts and things as may be reasonably required to authorise a release of the funds held on trust pursuant to order 4 of these orders to enable the payment of his proportion of the amount payable within seven (7) days of notification of the amended assessment.

6. THAT any surplus of funds held on trust by the Husband's solicitors (or the solicitors for the Wife, as the case may be) not required to discharge the Husband's share of the amount payable pursuant to the amended assessment be released to the Husband.

7. THAT pending the payment:

   (a)the Wife have sole use and occupation of the former matrimonial home and during such right of occupation the Wife pay and be responsible for all rates taxes and insurance on the former matrimonial home;

   (b)each of the parties be and is hereby restrained from encumbering the former matrimonial home; and

   (c)each of the parties holds their interest in the former matrimonial upon trust to be dealt with in accordance with these orders

8. THAT these Orders bind the trustee of the Australian Super Fund ("the Fund") and these Orders take effect from the operative time being the fourth business day after the service of these Orders on the trustee of the fund.

9. THAT the Member Spouse of the Australian Super Fund is the wife born …, Member Number … ("the Member Spouse")

10. THAT the Non-Member Spouse is the husband, born … ("the Non-Member Spouse").

11. THAT the base amount to be allocated to the Non-Member Spouse out of the interest of the Member Spouse is $66,275.

12. THAT in accordance with Section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the superannuation of the Member Spouse in the Fund, the Non-Member Spouse will be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001, using the base amount of $66,275 and there be a corresponding reduction in the entitlement of the Member Spouse to whom the splittable payment would have been made but for these Orders.

13. THAT liberty be reserved to the parties and to the Trustee of the Australian Super Fund to apply with respect to the implementation of these Orders affecting the superannuation interest.

14. THAT until the happening of any of:

    (a)the establishment of a separate account in the name of the Non-Member Spouse in the Fund;

    (b)the transfer or "rolling over" into another superannuation fund of the payment split created by order 12 of these orders;

    (c)the Non-Member Spouse satisfying a condition of release and being paid the payment split which was created by order 12 of these orders; or

    (d)the Non-Member Spouse executing a waiver of rights within the meaning of section 90MZA of the Family Law Act 1975 in relation to the payment split created by order 12 of these orders:

the Member Spouse be and is hereby restrained by herself, her servants and or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of her interest in the Fund a "not splittable payment" within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 and the trustees of the Fund give effect to this Order.

1. THAT the solicitors for the Member Spouse serve a sealed copy of these orders on the trustee of the Fund.

2. THAT the Wife forthwith make available for collection by the Husband the following chattels from the former matrimonial home:

   (a)marble-topped commode;

   (b)toolbox and tools given to the Husband by his father during the marriage;

   (c)original sketch;

   (d)original oil painting;

   (e)French oak dining table with two leaves; and

   (f)as per annexure "A"

3. THAT the Wife otherwise retain all chattels in the former matrimonial home and be entitled to the albums referred to in Annexure "A".

4. THAT unless otherwise specified in these orders, and save for the purposes of enforcing any monies due under these orders:

   (a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party at the date of the orders (all chattels in the former matrimonial home, save for the items identified in order 16 of these orders being deemed to be in the possession of the  Wife);

   (b)insurance policies remain the sole property of the named owner;

   (c)each party be solely liable for and indemnify the other against any liability encumbering any items of property to which that party is entitled pursuant to these orders; and

   (d)any joint tenancy of the parties in any real or personal property is hereby expressly severed.

CHILD SUPPORT

1. THAT for the period from 1 November 2008 to 22 February 2010 the total amount of child support be set equal to the monies already paid for that period, including the value of any non-agency payments credited for that same period, with the effect that no arrears remain payable and no overpayment is created. 

2. THAT pursuant to Section 117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of child support payable by the husband to the wife for the children specified as follows:

   For the period from 3 February 2010 to 31 December 2015 the annual rate of child support be set at $7,833 payable annually.  This amount is to be apportioned equally between the children.

3. THAT contemporaneously with the payment the Husband pay to the Wife the sum of $47,000 being a lump sum payment (“the lump sum payment”) to the support of the children O born … May 1999, L born … February 2001 and M born … September 2003 (“the children”) for the period from 3 February 2010 until 31 December 2015 (“the period”) and as a consequence of the payment of the lump sum:

   (a)Order 20 of these Orders is satisfied;  and

   (b)the lump sum payment is to count as 100% of any assessment pursuant to Order 20 of these Orders.

4. THAT all extant applications be otherwise dismissed and removed from the docket of Young J.

5. THAT all documents subpoenaed be returned to the person or organisation producing those documents.

6. THAT liberty to apply be reserved in the event of the Wife challenging an amended assessment of 2007 income tax the determination of which has not concluded as at 1 July 2012.

IT IS NOTED

A.THAT the parties intend that these orders will as far as practicable determine the financial relationship between the parties and avoid further proceedings between them.

B.THAT for the avoidance of doubt Orders 19 to 21 expire on 31 December 2015 and thereafter child support for the children will be assessed administratively.

C.THAT these Orders take into account that the Wife will be solely responsible for the children's education expenses and the Orders made have provision for the Husband's contribution to same.

ANNEXURE "A"

§6 Habitat picture frames

§Hay DVD's (mostly children's)

§Portuguese tile mural

§Tall glass cupboard

§All paintings by the husband being 1 small item in habitat frame, 3 large items in habitat frames and, 16 medium items.

§Oil paintings of Greek goddess (2)

§Wooden Balinese boat carving

§Husband’s large art folio

§1 Japanese woodprint (boy in boat)

§1 Japanese woodprint (lady)

§Balinese oil painting

§Large habitat frame (no glass)

§Frame for light from V

§Bag of husband’s clothes and shoes

§4 Shovels, spade and brooms.

The Wife is to make available to the Husband the children's birth books to copy and return to her contemporaneously with the Husband delivering to the Wife her photo albums 1, 9, 10, 11, 13 and 14. 

The Husband is to allow the Wife to copy and return the Husband's Paris diary complete with illustrations. 

.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:       MLC 2566 of 2008

MS BARLOW

Applicant

And

MR PURNELL

Respondent

REASONS FOR JUDGMENT

1. The matter of Barlow & Purnell is listed before me as a defended property and financial matter.  Mr Wilson of counsel appears for the wife;  Ms Smallwood of counsel for the husband.  The parties have been in court throughout the proceedings are present at the negotiations out of court all day, and their instructing solicitors have been present at all times.

2. The facts of this matter are very clearly established in the substantial affidavits filed, which I have carefully read, and in the accompanying financial statements.  I will not recite the facts of this case, which are established in the material, and as a result of consent orders being reached between the parties, I have marked the balance sheet as exhibit “W2”, and that is, by and large, a jointly-prepared document where almost all assets were the subject of agreement and in which the liabilities were defined.

3. I am now presented with final consent orders and have been asked by both counsel and their clients to pronounce orders in these terms.  I am satisfied that the parties do understand the finality of the orders.  The orders provide for a division, approximately 62 per cent in favour of the wife and 38 per cent in favour of the husband, plus an additional division of the superannuation, and appropriate child support;  orders to cover the period through to 31 December 2015, and thereafter for any child support to be administratively assessed.

4. I have carefully read the contributions of the parties over the 15 years of the marriage and relationship period.  I am aware of the section 79(4) contribution matters, both financial and non-financial, and also those homemaker-parent considerations and each of the relevant section 75(2) factors.

5. I am very comfortable with the settlement.  I declare, pursuant to section 79(2) of the Act that the orders bring about a just and equitable determination of the property of the parties, and on that basis I will now proceed to pronounce final consent orders.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: