FAMILY COURT OF AUSTRALIA
| BECKERT & BECKERT | [2020] FamCA 627 |
| FAMILY LAW – CHILDREN – Application by the wife for sole parental responsibility – where the husband opposes wife’s application – three children of the marriage – where wife is the primary carer of the children – history of family violence – breach of intervention orders by the husband – concerns as to the husband’s alcohol consumption – consideration of best interests of the children – rebuttal of presumption under s 61DA of the Family LawAct 1975 (‘the Act’) – orders made by consent of the wife and the Independent Children’s Lawyer – sole parental responsibility of the children – children to live with the wife – children to spend time with the husband provided the husband is not affected by alcohol. FAMILY LAW – PROPERTY – Application by husband and wife for alteration of property interests – cohabitation period of approximately 11 years – direct financial contributions made by the wife and on the wife’s behalf at commencement and during cohabitation – where husband was almost exclusively the sole income earner – where the husband controls the parties’ corporate entities – where husband withdrew financial support for the wife and children following separation – spousal maintenance claim made in respect of part-property distributions – spousal maintenance claim acceded to – where there remains significant arrears in child support and low enforcement prospects – where husband has failed to provide financial disclosure and comply with orders of the Court – assessment of contributions – consideration of s 75(2) of the Act factors – where the husband has greater earning capacity – where wife remains primary carer of the children – orders made as sought by the wife – indemnity costs ordered. FAMILY LAW – PRACTICE AND PROCEDURE – Where s 102NA of the Act applies – oral application by husband to set aside previous cross-examination orders pursuant to s 102NA of the Act – application to set aside s 102NA orders dismissed – oral application by husband for the recusal of the trial Judge – application for recusal dismissed – oral application by wife seeking leave to proceed undefended on day two of the trial – application to proceed undefended granted and matter proceeded undefended. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 67Z, 68B, 68P, 69ZN, 69ZW, 75, 79, 97, 102NA, 114 |
| Acland & Grohl [2019] FamCAFC 69 |
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- AGLC
- BECKERT & BECKERT [2020] FamCA 627
- Case
- [2020] FamCA 627
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key legal issues. In relation to parenting, the primary issue was whether the presumption of equal shared parental responsibility under section 61DA of the *Family Law Act 1975* (Cth) should be rebutted, and if so, what orders were in the best interests of the children, particularly in light of a history of family violence, breaches of intervention orders by the husband, and concerns regarding his alcohol consumption. Regarding property, the court had to assess the parties' contributions and consider the factors under section 75(2) of the Act to determine a just and equitable distribution of their interests, including spousal maintenance. Procedurally, the court also dealt with applications by the husband to set aside previous cross-examination orders and for the recusal of the trial judge, both of which were dismissed.
Hartnett J's reasoning led to significant orders being made. The presumption of equal shared parental responsibility was rebutted, and by consent of the wife and the Independent Children’s Lawyer, the wife was granted sole parental responsibility. The children were ordered to live with the wife, with specific provisions for time spent with the husband, which was made conditional on him not being affected by alcohol and undergoing breath analysis testing. The court also acceded to the wife's spousal maintenance claim, noting the husband's role as the sole income earner during the cohabitation, his control over corporate entities, and his withdrawal of financial support post-separation. The court considered the husband's failure to provide financial disclosure and comply with previous orders, and assessed contributions and section 75(2) factors, including the husband's greater earning capacity and the wife's role as primary carer. The property orders reflected the wife's claims, and indemnity costs were awarded against the husband.
The final orders included detailed parenting arrangements, with provisions for the children to live with the wife and spend time with the husband under strict conditions related to his alcohol consumption and participation in counselling. The property orders involved the transfer of assets and liabilities, the finalisation of trust and company matters, and substantial payments to the wife, including spousal maintenance and costs. The court also made orders concerning the parties' superannuation interests and provided for the husband to indemnify the wife against his liabilities.
Orders
Orders of the court
Parenting Orders
1.
All previous parenting orders are discharged.
By consent of the Applicant wife (‘the wife’) and the Independent Children’s Lawyer:-
2.
The wife have sole parental responsibility for the children X born … 2013, Y born … 2013 and Z born … 2013 (‘the children’).
3.
In the event the wife intends to make a decision for the children, or any of them, in regards to schooling or a major medical decision pursuant to order 2 herein the following shall occur:-
(a) unless in the event of an emergency, the wife shall provide the Respondent husband (‘the husband’) with 28 days’ written notice of her decision and provide brief reasons as to how her decision is in the children’s best interests;
(b) the husband will respond, in writing, within 14 days thereafter indicating if he agrees or disagrees with that decision and if he does not agree his brief reasons for his disagreement; and
(c) thereafter, the wife shall consider the matters raised by the husband and advise the husband, within 14 days of receiving his response, in writing, of the decision she has made.
4.
The children live with the wife.
5.
Subject to the husband’s compliance with order 7 herein, the children shall spend time and communicate with the husband as follows:-
(a) during school terms:-
(i) each Wednesday from 5.00pm until 7.00pm; and
(not by consent of the wife and the Independent Children’s Lawyer who sought the second weekend of each school term)
(ii) each alternate weekend from 10.00am until 6.00pm on both Saturday and Sunday, commencing the first weekend of each school term;
(b) during school holidays:-
(i) each weekend of the mid-year school term holidays from 10.00am until 6.00pm on both Saturday and Sunday; and
(ii) each of the first two weekends of the long summer school holidays from 10.00am until 6.00pm on both Saturday and Sunday, commencing on the first weekend following the conclusion of the school term;
(c) on Father’s Day from 10.00am until 6.00pm;
(d) on the husband’s birthday if a school day from 5.00pm until 7.00pm and if a non-school day then from 10.00am until 6.00pm;
(e) on the children’s birthdays, if the children would not otherwise see the husband that day, then if a school day from 4.30pm until 6.30pm and if a non-school day then from 10.00am until 2.00pm;
(f) each Christmas as follows:-
(i) in even numbered years from 10.00am until 4.00pm on 25 December; and
(ii) in odd numbered years from 10.00am until 4.00pm on 24 December;
(g) by telephone at any time between 5.00pm and 6.00pm on Sundays that the children do not otherwise see the husband, and the wife shall provide a telephone number on which the husband may contact the children; and
(h) any other time as agreed between the parties in writing.
6.
All changeovers shall occur outside the wife’s residence unless otherwise agreed between the parties in writing.
7.
The children’s time with the husband is conditional upon:-
(a) the husband not consuming or being affected by alcohol during any period the children spend time or communicate with him;
(b) the husband providing a nil reading for blood alcohol on a breath analysis testing device at the commencement and conclusion of each period of time the children spend with him for the purpose of this order, and if the husband cannot produce a nil blood alcohol reading:-
(i) at the commencement of the children’s time with him, then the time on that occasion shall be suspended; and
(ii) at the conclusion of the children’s time with him, then the following visit shall be suspended; and
(c) the husband’s partner, Ms M, or such other adult as agreed between the parties in writing in advance of the children commencing time with the husband, being in substantial attendance.
8.
In the event that the husband fully complies with order 7 herein and:-
(a) at his cost, forthwith engages in an intensive program of drug and alcohol counselling for at least 12 continuous months with a therapist nominated by the Independent Children’s Lawyer (‘the therapist’), and complies with all reasonable directions of the therapist including as to ongoing attendance at therapy;
(b) provides to the therapist at the commencement of therapy a copy of the Family Report of Mr A dated 9 January 2019 and a copy of these orders; and
(c) thereafter, after a minimum period of 12 months, provides to the wife:-
(i) a written report from the therapist confirming the husband’s full compliance with orders 8(a) and 8(b) herein; and
(ii) at his cost, hair follicle drug and alcohol screening results from a laboratory approved by the Independent Children’s Lawyer that demonstrates that the husband has been wholly abstinent from alcohol and illicit substances for a minimum of 12 continuous months;
then in lieu of the children’s time with him pursuant to order 5 herein, the children shall spend time with the husband in accordance with order 9 herein.
9.
Provided that the husband has complied with order 7 and order 8 herein, and complies with order 10 herein, the children shall spend time with the husband as follows:-
(a) during school terms:-
(i) each alternate weekend from the conclusion of school on Friday until the commencement of school each Monday morning, commencing on the first weekend of each school term; and
(ii) from the conclusion of school each Wednesday until the commencement of school each Thursday morning;
(b) during school holidays:-
(i) for half of each mid-year school holiday as agreed and in default of agreement, the first half in odd numbered years and the second half in even numbered years; and
(ii) for half of the long summer holidays as agreed, and in default of agreement the first half in odd numbered years and the second half in even numbered years;
(c) should Father’s Day fall on a weekend when the children are not spending time with the husband, from 9.00am until 5.00pm on Father’s Day;
(d) on the husband’s birthday and the children’s birthdays, should the children not be otherwise spending time with the husband, from the conclusion of school until 6.00pm if a school day and otherwise from 10.00am until 2.00pm;
(e) for Christmas as follows:-
(i) from 4.00pm on Christmas Eve until 4.00pm on Christmas Day in odd numbered years; and
(ii) from 4.00pm on Christmas Day until 10.00am on 27 December in even numbered years; and
(f) at such further or other times as agreed between the parties in writing;
with the children’s time with the husband pursuant to order 9 herein to be conditional upon his full compliance with order 10 herein.
10.
In the event the husband commences spending time with the children in accordance with order 9:-
(a) the children’s time with the husband shall remain conditional upon the husband not consuming or being affected by alcohol during any period the children spend time or communicate with him;
(b) the husband shall provide a nil reading for blood alcohol on a breath analysis testing device at the commencement and conclusion of each period of time that the children spend with him and for the purpose of this order, and if the husband cannot produce a nil blood alcohol reading:-
(i) at the commencement of the children’s time with him, then the time on that occasion shall be suspended; and
(ii) at the conclusion the children’s time with him, then the following visit shall be suspended;
(c) the husband shall continue to engage in drug and alcohol counselling with the same therapist referred to in order 8(a) herein, and comply with all reasonable directions of the therapist including as to ongoing attendance at therapy;
(d) the husband shall forthwith provide the wife with the name and contact details of the therapist, and upon receipt of these details, the wife be authorised to provide the therapist with a copy of these orders;
(e) the husband shall be required to provide the wife a nil reading for blood alcohol on a breath analysis testing device at the commencement of each time the children spend time with him and if he cannot do so, the children’s time with him on that occasion shall be suspended and the children’s time with him shall immediately revert to the time contained in order 5 herein and the husband shall be required to satisfy order 8 herein for a further period of 12 continuous months before order 9 herein can recommence; and
(f) the wife be at liberty to:-
(i) request the husband to submit to random breath analysis testing for blood alcohol once per month, with the husband to submit to the breath test within one hour of receipt of a request from the wife, and he shall provide the results to the wife via a video text message which records the husband undergoing the test and producing clear, legible results;
(ii) request the husband to undergo a hair follicle test for alcohol consumption and illicit drug use every three months, with the husband to undertake the hair follicle test within 48 hours of the wife’s request on the following basis:-
A. the husband is to attend upon Australian Workplace Drug Testing Service or another laboratory authorised to conduct hair follicle testing for alcohol consumption and drug testing for the purpose of providing a sample sufficient to assess the previous three months;
B. the husband is to provide the hair follicle test results to the wife as soon as they are available; and
C. the husband is to be responsible for the cost of the testing; and
(iii) contact the therapist and obtain a written report as to his attendance, and the husband shall do all acts and things necessary to authorise the wife to obtain this information; and
(g) in the event that the husband does not comply with orders 10(a)-(f) herein or the results of any breath analysis test or hair follicle test show the use of alcohol or other illicit substances, then:-
(i) order 9 herein shall be suspended;
(ii) the children’s time with the husband shall immediately revert to the time contained in order 5 herein; and
(iii) the husband must fully comply with order 8 herein for a further period of 12 continuous months before order 9 herein can recommence.
11.
The children shall live with the wife at all other times than those referred to in order 5 or order 9 (as the case may be) herein.
12.
The children’s time with the husband be suspended:-
(a) from 4.00pm on Christmas Day until 10.00am on 27 December in odd numbered years;
(b) from 4.00pm on Christmas Eve until 4.00pm on Christmas Day in even numbered years;
(c) should Mother’s Day fall on a weekend when the children are not spending time with the wife, from 9.00am until 5.00pm on Mother’s Day; and
(d) on the wife’s birthday and the children’s birthdays, should the children not be otherwise spending time with the wife, from the conclusion of school until 6.00pm if a school day and otherwise from 10.00am until 2.00pm.
13.
For the purpose of defining the school holiday period, the school holiday period shall commence from the conclusion of school on the last day of term on which the children are required to attend school and conclude at the commencement of school on the first day of the next term on which the children are required to attend, and the school term arrangements shall recommence as if the school holiday period had not intervened.
14.
The wife advise the husband by email of:-
(a) a nominated mainstream medical clinic (‘the nominated clinic’) at which the children attend for general medical care and each of the parties shall ensure that the children attend that clinic for treatment at first instance, save in the case of genuine emergency or impracticality; and
(b) any changes to that nominated clinic at least 14 days prior to such change occurring.
15.
Liberty is granted to the husband to consult with the children’s doctors and allied health professionals in order to obtain information about the children’s health with these consultations to be at the husband’s own expense and in the absence of the children.
16.
The parties shall notify each other as soon as practicable of any significant medical illness or serious injury involving the children when in their care, and authorise the other party to speak with any health professional involved with the children.
17.
The wife do all such acts and things as may be necessary to ensure that the husband receives copies of any medical and academic assessments in relation to the children.
18.
The wife shall notify the husband in advance of any significant medical, counselling or other specialist assessment of the children and will authorise the relevant treating professional to provide to the husband all such information in relation to that treatment as the professional considers appropriate.
19.
Both the wife and the husband be noted as emergency contacts and authorised to obtain any information they might require from any educational facility the children attend.
20.
The husband be at liberty to attend any school function that parents normally attend subject to him giving the wife written notice of his intention to do so no less than 14 days in advance and, at such time until order 7 herein is discharged, providing the wife with a nil reading for blood alcohol content prior to his entry to the school function.
21.
The wife and the husband be authorised to provide copies of these orders to the children’s school and any treating professional.
22.
Each of the wife and the husband shall keep the other advised at all times of their contact details including telephone number, email address, and residential address, and notify the other parent as soon as practicable of any change in such information.
23.
Provided the time falls within the children’s time with the wife, the wife be at liberty to remove the children from the Commonwealth of Australia for the purposes of holidays, provided she has provided the husband with 30 days’ written notice, including flight itineraries and accommodation details, and a telephone number on which the children may be contacted, unless otherwise agreed.
24.
The wife be and is hereby authorised to do all acts and things and sign all documents as may be necessary to ensure that the children have current Australian Passports from time to time, as well as any necessary visa for travel, and the consent of the husband shall not be required.
25.
The parties are hereby restrained by injunction from:-
(a) denigrating the other party or any member of the other party’s family in the presence or hearing of the children or allowing anyone else to do so;
(b) discussing with the children or within the children’s hearing these proceedings; and
(c) questioning the children about the activities of the other parent.
By the Court:-
26.
Pursuant to s 68P(2)(a) of the Family Law Act 1975 (Cth) (‘the Act’), to the extent that order 20 herein may be inconsistent with an interim intervention order that has been made by a Magistrates’ Court (‘the intervention order’):-
(a) the order herein shall prevail over such order and operate according to its terms; and
(b) the intervention order is invalid, by force of s 68Q(1) of the Act.
27.
The order made 20 April 2018 appointing the Independent Children’s Lawyer is discharged.
Property Orders
28.
Forthwith upon the making of these orders herein:-
(a) the husband shall do all acts and things necessary to deliver to the offices of Sayer Jones Pty Ltd all receipts and other documents necessary to enable O Group to prepare the taxation returns and financial statements for the Beckert Family Trust for the financial year ended 30 June 2019 at the joint expense of the parties and the wife shall be at liberty to solely instruct O Group in this regard;
(b) forthwith upon O Group’s preparation of the taxation returns and financial statements for the Beckert Family Trust for the financial year ended 30 June 2019, the parties shall in their capacity as directors of Beckert Investments Pty Ltd do all acts and things and sign all documents as may be necessary to finalise and cause the taxation returns and financial statements to be lodged by O Group, and for the purposes of meeting any and all Capital Gains Tax (excluding any interest or penalties which shall be met solely by the husband) (‘CGT’) payable for the properties situate at and known as R Street, Town H in the State of Victoria (‘the Town H property’) and S Street, Suburb E in the State of Victoria (‘the Suburb E property’), the parties shall do all acts and things necessary to instruct Sayer Jones Pty Ltd to release such amount as is required to pay the CGT from the Westpac Controlled Monies Account in the name of Beckert Investments Pty Ltd as trustee for the Beckert Family Trust, being Account Number …42 (‘the Westpac …42 account’); and
(c) following the payment of the CGT and the lodgement of the 2019 taxation returns and financial statements pursuant to order 28(b) herein, the parties shall do all acts and things and sign all documents at the sole expense of the husband as may be necessary to cause the wife to be removed as a director and a beneficiary of the Beckert Family Trust and otherwise amend the Trust Deed of the Beckert Family Trust in such manner as the husband may direct at the sole expense of the husband, and the husband shall thereafter be solely liable for and pay as and when the payments fall due any and all interest payable, costs, penalties and any payments required by the Australian Taxation Office (‘the ATO’) in relation to the winding up of Beckert Investments Pty Ltd as trustee for the Beckert Family Trust, and the wife be and is indemnified by the husband in relation to all liability, interest and payments.
29.
In the event that the husband does not comply with orders 28(a), 28(b) and 28(c) herein within seven days of a request to do so, the wife shall immediately resign as a director and beneficiary of the Beckert Family Trust at the sole expense of the husband and shall retain 100 percent of the balance of the Westpac …42 account, and the husband shall be solely liable for meeting:-
(a) the CGT and any interest and penalties associated with same; and
(b) all interest payable, costs, penalties and any payments required by the ATO in relation to the winding up of Beckert Investments Pty Ltd as trustee for the Beckert Family Trust, and the wife be and is indemnified by the husband in relation to all liability, interest and payments.
30.
Forthwith upon the parties’ compliance with order 28(b) herein (or in the event that order 29 herein is triggered), the parties shall in their capacity as directors of Beckert Investments Pty Ltd do all acts and things and sign all documents as may be necessary to authorise Sayer Jones Pty Ltd to disburse 100 percent of the remaining balance of the Westpac …42 account, to the wife as she may direct in writing.
31.
Forthwith upon the making of these orders herein, the parties shall do all acts and things and sign all documents as may be necessary to authorise Sayer Jones Pty Ltd to disburse 100 percent of the balance of the Westpac Controlled Monies Account in the name of Ms Beckert and Mr Beckert, being account number …05, to the wife as she may direct in writing.
32.
In default of compliance with any of orders 28(b), 28(c), 29, 30 and 31 herein, the director of Sayer Jones Pty Ltd, William Henry Jones, be authorised pursuant to s 106A of the Act to do all acts and things and execute all instruments as may be necessary to enable the respective payments to be made and to give validity and operation to these orders herein and each such instrument.
33.
Within 28 days of the making of these orders herein, the husband shall pay to the wife the sum of $15,000 in satisfaction of order 20 of the orders made by Judge Kelly in the Federal Circuit Court of Australia on 31 May 2019.
34.
Within 28 days of the making of these orders herein, the husband pay the wife’s costs on an indemnity basis arising from:-
(a) the subpoena hearing before Judge Kelly in the Federal Circuit Court of Australia on 18 December 2018, being the sum of $703;
(b) the judicial duty list hearing before Justice Hartnett on 8 October 2019, being the sum of $5,262;
(c) the compliance hearing before Justice Hartnett on 6 April 2020, being the sum of $3,387.
35.
In the event that the husband fails to comply with either or both of order 33 and order 34, he shall forthwith do all acts and things and sign all documents as may be necessary to discharge the Motor vehicle 1 Leasing Service loan secured against the Motor vehicle 1 and thereafter transfer the Motor vehicle 1 to the wife unencumbered. Thereafter the wife shall sell the Motor vehicle 1 and disburse any sale proceeds:-
(a) firstly, to pay all costs, commissions and expenses of the sale including any costs required to prepare the Motor vehicle 1 for sale; and
(b) secondly, in payment of the costs remaining outstanding and due to the wife pursuant to orders 33 and 34 herein; and
(c) thirdly, in payment of any and all enforcement indemnity costs incurred by the wife; and
(d) fourthly, the sum of $70,000 of the monies thereafter remaining, and if a lesser some than the entirety of that lesser sum, is to be held in an interest bearing account on behalf of the parties by the solicitors for the wife pending the husband’s compliance with orders 37 and 38 herein. The husband shall apply these funds in partial reinstatement of the member balance of the wife in the SMSF; and
(e) fifthly, any balance then remaining to be paid by the wife to the husband within 28 days of sale of the Motor vehicle 1.
36.
Orders 37 to 41 inclusive herein are binding on the trustee of the Beckert Superannuation Fund (‘the SMSF’) and take effect from the operative time being the fourth business day after the date of service of these orders herein on the trustee of the SMSF.
37.
Within three months of the making of these orders herein, the husband do all acts and things necessary to ensure that the SMSF is a compliant SMSF and reinstate his own member balance and the wife’s member balance in the SMSF that they each would have but for the husband’s removal of funds from the Commonwealth Bank of Australia COIA account, being account number …41.
38.
Following the husband’s compliance with order 37 herein:-
(a) in accordance with s 90XT(1)(b) of the Act, whenever a splittable payment (‘the wife’s splittable payment’) becomes payable in respect of the husband’s interest in the SMSF, the wife is entitled to be paid an amount representing 50 percent of the parties’ combined superannuation interests, to be rolled over into a superannuation fund of her choosing, and there be a corresponding reduction in the entitlement that the husband would have had in the SMSF but for these orders herein;
(b) the wife shall thereafter resign as a Director of Beckert Superannuation Pty Ltd and the husband shall thereafter be solely liable for and pay as and when the payments fall due, any and all interest payable, costs, penalties and any payments required by the ATO in relation to:-
(i) the winding up of the SMSF; and
(ii) the SMSF’s non-compliance, including but not limited to, the ATO and making such payments as may be required as and when they fall due;
and the wife be and is indemnified by the husband in relation to all liability, interest and payments.
39.
In the event that the husband fails to comply with order 37 herein:-
(a) the wife shall forthwith resign as a director of Beckert Superannuation Pty Ltd;
(b) the husband shall forthwith do all acts and things necessary to discharge the lease owing to Motor vehicle 1 Leasing Service in respect of his Motor vehicle 1 and thereafter transfer the Motor vehicle 1 to the wife at his sole expense, and in the event he has already transferred the Motor vehicle 1 to the wife pursuant to order 35 herein, and there remains a shortfall in the wife’s entitlement in the SMSF pursuant to these orders then there is liberty to the wife to apply as to the enforcement of such reinstatement of her interest in the SMSF; and
(c) the husband be solely liable for and pay as and when the payments fall due, any and all interest payable, costs, penalties and any payments required by the Australian Taxation Office in relation to:-
(i) the winding up of the SMSF; and
(ii) the SMSF’s non-compliance, including but not limited to, the Australian Taxation Office and making such payments as may be required as and when they fall due;
and the wife be and is indemnified by the husband in relation to all liability, interest and payments.
40.
The trustee of the SMSF shall comply with the obligations imposed upon Trustees of eligible superannuation plans under the Act and the Family Law (Superannuation) Regulations 2001 (Cth).
41.
Simultaneously with the wife resigning as a director of Beckert Superannuation Pty Ltd, notwithstanding whether that resignation is pursuant to order 38(b) or order 39(a) herein, the parties shall do all acts and things and sign all documents as may be necessary to close any remaining joint bank accounts, including but not limited to accounts in their personal names, and in the names of Beckert Investments Pty Ltd, Beckert Superannuation Pty Ltd and any other entities, and equally divide any remaining balance between them.
42.
Save as otherwise provided for in these orders herein, the husband shall otherwise retain, to the absolute exclusion of the wife, all of his right, title and interest in the following:-
(a) his bank accounts;
(b) the business K Pty Ltd;
(c) the business K2 Pty Ltd;
(d) the Beckert Family Trust;
(e) Beckert Investments Pty Ltd;
(f) his interest in the Motor vehicle 1;
(g) his superannuation entitlements;
(h) the furniture, effects and personal belongings in his possession as at the date of these orders herein; and
(i) all other assets of whatsoever nature and kind in the husband’s sole name as at the date of these orders herein, including but not limited to chattels, shares in public listed companies, superannuation entitlements and annual leave entitlements.
43.
Save as otherwise provided for in these orders herein, the wife shall otherwise retain, to the absolute exclusion of the husband, all of her right, title and interest in the following:-
(a) her bank accounts;
(b) her Motor vehicle 2;
(c) her superannuation entitlements;
(d) the furniture, effects and personal belongings in her possession as at the date of these orders herein; and
(e) all other assets of whatsoever nature and kind in the wife’s sole name as at the date of these orders herein, including but not limited to chattels, shares in public listed companies, superannuation entitlements and annual leave entitlements.
44.
Except as provided for in these orders herein, and as a separate and ongoing liability the husband shall pay, indemnify and keep the wife effectively indemnified against:-
(a) all losses incurred by, brought, made or revoked against the wife as a direct or indirect result of the husband’s liabilities, whether personal or in the name of his business entities, including but not limited to K2 Pty Ltd, K Pty Ltd, Beckert Investments Pty Ltd, Beckert Superannuation Pty Ltd or the Beckert Family Trust;
(b) any and all creditors of the husband;
(c) any and all borrowings of the husband;
(d) any and all liabilities to the Australian Taxation Office owing by the husband, whether personal or in the name of his business entities, including but not limited to K2 Pty Ltd, K Pty Ltd, Beckert Investments Pty Ltd, Beckert Superannuation Pty Ltd or the Beckert Family Trust, and any interest, costs (including accounting costs) or penalties applicable thereto;
(e) any and all hire purchase and/or lease liabilities in respect of any assets owned by the husband;
(f) any and all other debts and/or liability of whatever nature in respect of the husband;
(g) any credit card liabilities of the husband; and
(h) any personal guarantees given by the wife in respect of the debts of the husband;
and for the purposes of this order herein, ‘losses’ shall mean any damages, loss, claim, action, liability, costs, expenses, outgoings, taxation and/or payment.
45.
Except as provided for in these orders herein, and as a separate and ongoing liability the wife shall pay, indemnify and keep the husband effectively indemnified against:-
(a) all losses incurred by, brought, made or revoked against the husband as a direct or indirect result of the wife’s liabilities;
(b) any and all creditors of the wife;
(c) any and all borrowings of the wife;
(d) any and all liabilities to the ATO owing by the wife and any interest, costs (including accounting costs) or penalties applicable thereto;
(e) any and all hire purchase and/or lease liabilities in respect of any assets owned by the wife;
(f) any and all other debts and/or liability of whatever nature in respect of the wife;
(g) any credit card liabilities of the wife; and
(h) any personal guarantees given by the husband in respect of the debts of the wife;
and for the purposes of this order herein, ‘losses’ shall mean any damages, loss, claim, action, liability, costs, expenses, outgoings, taxation and/or payment.
46.
Unless otherwise specified in, and except for the purposes of enforcing compliance with the terms of, these orders herein:-
(a) each party shall be solely entitled to the exclusion of the other to all property (including choses-in-action) and financial resources in the possession of such party as at the date of these orders;
(b) each party hereby forgoes any claim they may have to any superannuation benefits or other employment related benefits belonging to or earned by the other;
(c) all insurance policies shall become the sole property of the owner named in the policy;
(d) each party shall be solely liable for and indemnify the other against any liability encumbering an item of property to which that party is entitled pursuant to these orders; and
(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
47.
In the event either of the parties refuse or neglect 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 s 106A of the Act to execute all deeds and/or instruments in the name of either of the parties and do all acts and things to give validity and operation to the deeds and/or instruments.
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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