FAMILY COURT OF AUSTRALIA
| BENNISON & BENNISON | [2015] FamCA 243 |
| FAMILY LAW – PROPERTY – Final – Adjustment to existing property interests pursuant to s 79 – Where a schedule of assets, liabilities, add backs and superannuation is compiled for the purpose of the s 79(4) assessment process – Where re-opening of evidence was necessary in the interests of justice – Whether there should be an adjustment under s 75(2) – Where the husband is terminally ill– Where it is alleged by the wife that the husband has undisclosed sources of income – Where there has been a deliberate failure on the part of the husband to make full and frank disclosure –– Where the sale proceeds of assets sold post-separation are brought back into the divisible pool of property on a notional basis – Circumstances justifying the notional add back of assets to the divisible pool of property – Where it is not possible to quantify in dollar terms the value or amount of the initial contributions made by the husband on the evidence before the Court – Where a single pool approach is appropriate given that neither party sought a different percentage division for superannuation and FAMILY LAW – CHILD SUPPORT – Application for departure from administrative assessment – Where the husband is willing to meet payment of the children’s private school fees and associated expenses – Where the Court is not satisfied that a departure otherwise from the administrative assessment under s 117(2) would be just and equitable. |
| Child Support (Assessment) Act 1989 (Cth) Family Law Rules 2004 (Cth) |
| Aleksovski v Aleksovski (1996) FLC 92-705 |
| APPLICANT: | Mr P Bennison |
| RESPONDENT: | Ms J Bennison |
| FILE NUMBER: | BRC | 338 | of | 2011 |
| DATE DELIVERED: | 13 April 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 19, 20, 21 March 2013; 5 April 2013; 15… |
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- AGLC
- BENNISON & BENNISON [2015] FamCA 243
- Case
- [2015] FamCA 243
- Decision Date
CaseChat Overview and Summary
The Court was required to determine the appropriate adjustment to the parties' property interests under s 79 of the *Family Law Act 1975* (Cth). This involved assessing the parties' contributions, financial resources, and needs, particularly in light of the Husband's terminal illness and the Wife's allegations of non-disclosure. The Court also had to consider whether an adjustment under s 75(2) of the Act was warranted. Furthermore, the Court was tasked with deciding whether to depart from the administrative child support assessment under s 117(2) of the *Child Support (Assessment) Act 1989*, considering the Husband's offer to pay private school expenses.
In its reasoning, the Court found that a re-opening of evidence was necessary in the interests of justice due to the disclosure issues. The Court applied the principle that sale proceeds of assets sold post-separation could be notionally added back to the divisible pool of property in circumstances justifying such an approach. Given the inability to precisely quantify the Husband's initial contributions, the Court deemed a single pool approach appropriate for the property division, as neither party sought a different percentage division for superannuation and non-superannuation assets. Regarding child support, while the Husband was willing to meet private school fees, the Court was not satisfied that a departure from the administrative assessment would otherwise be just and equitable.
The Court made detailed orders regarding the division of property, including the transfer of the K Street property to the Wife, the Wife's relinquishment of interests in the Bennison Group of companies and trusts, and the division of superannuation interests. The Husband was ordered to indemnify the Wife in relation to certain liabilities arising from her involvement in the Bennison Group. The Court also ordered a specific split of superannuation funds and a base amount allocation from the Wife's interest in the Townsend Superannuation Fund to the Husband. Finally, the Court ordered a departure from the administrative child support assessment, with the Husband to pay the private school expenses for the children in lieu of assessed child support until his death.
Orders
Orders of the court
It is ordered that:
K Street Property
1.
Within thirty (30) days of the date of these Orders:
(a) The Husband and Wife do all things and sign all documents necessary to transfer the Husband’s right, title and interest in the Suburb J property (being the property located at K Street, Suburb J in the State of Queensland, more particularly described as Lot … RP … Parish of Tingalpa County of Stanley) to the Wife’s sole name;
(b) The Husband transfer to the Wife all of his right, title and interest in and to any insurance policies in respect of the Suburb J property;
(c) The Husband, at his expense, cause the first registered mortgage in favour of Westpac Banking Corporation registered over the Suburb J property, being mortgage number …, to be discharged and released from the Suburb J property such that the Wife is the registered owner of the Suburb J property without mortgage.
2.
Pending the transfer of the Suburb J property pursuant to paragraph 1:
(a) The Wife has the sole right to occupy the Suburb J property;
(b) The Husband is responsible for the payment of all moneys due and owing to Westpac Banking Corporation in respect of registered mortgage number …;
(c) The Husband is restrained and an injunction issue restraining the Husband from borrowing any further money against the security of the Suburb J property;
(d) The Wife is solely liable for the following outgoings on the Suburb J property:
(i) all rates and water expenses;
(ii) any land tax;
(iii) the cost of all reasonably necessary repairs and maintenance to
the structures and or buildings;
(iv) the premiums for the continuation of current insurance policies;
(v) utility expenses including but not limited to gas, electricity and
telephone usage.
The Bennison Group
In these Orders “the Bennison Group” means:
(a) F Pty Ltd;
(b) G Pty Ltd;
(c) CC Pty Ltd;
(d) DD Pty Ltd;
(e) The I Property Unit Trust;
(f) L Pty Ltd; and
(g) The Bennison Family Trust.
3.
On or before a date sixty (60) days from the date of these Orders, the Wife shall convey to the Husband (and in the event of his death, his legal personal representative) all and any interests of the Wife in the settlement known as the Bennison Family Trust including but not limited to:
(a) Any loan account with the Bennison Family Trust;
(b) Any interest arising as a taker in default of either income or capital arising under the Deed of Trust of the Bennison Family Trust; and
(c) Relinquishing and foregoing any powers conferred upon the Wife by the Deed of Trust of the Bennison Family Trust.
4.
On or before a date sixty (60) days from the date of these Orders, the Wife shall transfer to the Husband, or to his nominee as directed by him, her interests as a shareholder in any of the companies in the Bennison Group, provided that the Husband shall prepare any documents required to do so at his expense.
5.
On or before a date sixty (60) days from the date of these Orders, the Wife shall do all things necessary to resign from any office she holds in any company in the Bennison Group, including any office as Director or Secretary.
6.
Save to the extent referred to elsewhere in these Orders, the Wife shall be permanently restrained from doing any act or thing with respect to any company or trust in the Bennison Group, or bringing any action, cause or claim whatsoever against any company or trust in the Bennison Group, and further be restrained from taking any step or doing any act or thing in purported reliance upon any right or power conferred upon her under Deed of Trust of the Bennison Family Superannuation Fund.
7.
The Husband shall indemnify the Wife and keep her indemnified in respect of any claims, demands, liabilities or debts of whatsoever nature as may exist or arise in respect of the Wife’s involvement as a Director, shareholder, borrower or otherwise in the Bennison Group, including any tax which might be assessed (of an income, capital or penalty nature) on dividends, distributions or other benefits of whatsoever nature purporting to come from any of the Bennison Group which have not been paid directly to the Wife (payment in this context does not include entries made in books of account, journal or otherwise).
8.
The Husband shall use his best endeavours to release the Wife from all and any guarantees given by her alone or jointly with others in relation to the activities, operations, property or otherwise of the Bennison Group, or any property or other interest retained by the Husband pursuant to this agreement, and in the event that such guarantees are not released, the Husband shall indemnify the Wife and keep her indemnified in respect of any claim relating thereto with such indemnity being intended to include costs (legal and otherwise), interest and other charges for which she may be liable/and incur in dealing with any such claim.
The Bennison Superannuation Fund
9.
Within seven (7) days of these Orders the Wife shall pay $51,745.31 to the Bennison Superannuation Fund.
10.
Following the payment by the Wife pursuant to paragraph 9, the Husband and Wife will jointly do all things and sign all documents necessary to:
(a) Instruct Z Accountants to prepare an updated balance sheet for the Bennison Superannuation Fund to determine the member balances for each of the Husband and Wife, and to calculate the outstanding and anticipated liabilities, taxes and costs, if any, of the Bennison Superannuation Fund;
(b) Set aside any amount representing the outstanding and anticipated liabilities, taxes and costs, if any, of the Bennison Superannuation Fund;
(c) Cause the Wife’s membership entitlement from the Bennison Superannuation Fund to be rolled out to her separate account, in another complying superannuation fund nominated by her;
(d) Following that setting aside of funds and roll out of the Wife’s entitlement, cause the balance of the assets in the Bennison Superannuation Fund representing the Husband’s membership entitlement, to be rolled out from that Fund to another complying superannuation fund nominated by him.
11.
Following the roll out of their membership interests in the Bennison Superannuation Fund, the Husband and Wife will do all things and sign all documents necessary to:
(a) Cause the Bennison Superannuation Fund to pay all of its outstanding and anticipated liabilities, taxes and costs; and
(b) Cause the Bennison Superannuation Fund to be wound up.
12.
For the purpose of complying with these Orders, the Husband and Wife are to jointly instruct the accountant for the Bennison Superannuation Fund, Z Accountants, in writing only and neither party shall unilaterally communicate with the accountant for the Fund in respect of the implementation of these Orders without the consent in writing of the other party.
KK Pty Ltd
13.
The Wife shall assign to the Husband her interest in the investment held by the parties with KK Pty Ltd, and shall do all things and sign all documents to enable that to occur.
14.
The Husband shall indemnify the Wife against any liability to KK Pty Ltd or to UBS in respect of the investment, and shall meet all obligations, including the payment of interest, associated with the investment and any borrowings associated therewith.
The Townsend Superannuation Fund
15.
Paragraphs 16 to 18 (inclusive) of these Orders are binding on the Trustee of the Townsend Superannuation Fund (“the Fund”).
16.
The Court allocates as required by s 90MT(4) of the Family Law Act 1975 (Cth) a base amount of $178,000.00 to the Husband, Mr P Bennison, out of the interest of the Wife, Ms J Townsend, in the Townsend Superannuation Fund.
17.
Pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever the Trustee of the Wife’s account (“the Wife’s account”) makes a splittable payment under the Wife’s interest in the Wife’s account, the Trustee will:
(a) Pay to the Husband or his legal personal representatives, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b) Make a corresponding reduction to the entitlement to the person to whom the splittable payment would have been made but for this Order.
18.
Paragraph 16 of this Order has effect from the operative time and the operative time is the date of this Order.
19.
The Wife direct and authorise the Trustee of the Fund to communicate with the Husband and/or any person authorised by him in writing:
(a) To answer any reasonable inquiries as may be made by his or on his behalf from time to time in relation to her entitlement in the Fund; and
(b) To provide to the husband and/or his authorised representative with a copy of any notice of any application or request by the Wife which seeks release of entitlements in the Fund insofar as that release may affect the Husband’s entitlement in the Fund pursuant to these Orders.
20.
The Wife by herself, her servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the Husband, his heirs, executors, administrators or nominees from receiving the benefits in the Fund to which he is entitled pursuant to these Orders.
21.
In the event that the superannuation split to the Husband pursuant to these Orders can be rolled over into a separate account to the Husband in another complying superannuation fund nominated by him, each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
Property to be Retained
22.
The Wife retain absolutely and without further claim by the Husband:
(a) The former matrimonial home situated at K Street, Suburb J;
(b) The proceeds of the sale of property at EE Street, Suburb FF received by the Wife;
(c) Her European motor vehicle;
(d) Her cash at bank;
(e) The furniture and contents located in the K Street property;
(f) Her jewellery;
(g) The partial property settlement (from sale of Suburb M property);
(h) The proceeds of sale of the Wife’s share portfolio;
(i) The proceeds of sale of the Wife’s diamond ring;
(j) The monies paid to the Wife pursuant to Order of Justice Kent dated 25 January 2013;
(k) The amount expended by her on legal costs; and
(l) The loan owing to Bennison Superannuation Fund (until discharged).
23.
The Husband retain absolutely and without further claim by the Wife:
(a) His cash at bank;
(b) The proceeds of sale of property at GG Street, Suburb Q;
(c) The proceeds of sale of property at Suburb T;
(d) The property at HH Street, II Town;
(e) The 30 per cent interest in JJ Pty Ltd;
(f) The Bennison Group;
(g) The KK Pty Ltd share fund;
(h) His cash at bank;
(i) The partial property settlement (from sale of Suburb M property);
(j) The proceeds of sale of the boat;
(k) The proceeds of sale of the motorcycle;
(l) Any monies withdrawn by the Husband from the Bennison Group;
(m) The furniture and contents in his possession;
(n) The amount expended by him on legal costs;
(o) The loan re: monies paid to the Wife pursuant to Order of Justice Kent dated 25 January 2013; and
(p) Any loans owing to the Husband.
24.
From the date of these Orders, unless otherwise specified in these Orders:
(a) Each party will be solely entitled to the exclusion of the other to all property and/or financial resources in the possession of such party as at the date of these Orders including but not limited to any jewellery, furniture, furnishings, appliances, shares, motor vehicles, debtors, choses-in-action and any other property and/or financial resources, whether realty or personalty, wheresoever situate and/or of whatsoever kind presently in the possession of or registered in the name of that party;
(b) Monies standing to the credit of the parties in any bank account standing in their sole name as at the date of these Orders will be the property of the party in whose name such bank account is held;
(c) Each party will 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;
(d) The parties will be and remain solely responsible for each and every debt/liability standing in their separate names respectively as at the date of these Orders, including but not limited to credit card liabilities and debts owing to the Australian Taxation Office, and indemnify the other party and hold them harmless in relation to any such debt/liability.
Indemnities
25.
From the date of these Orders, the Wife shall be solely responsible for and indemnify the Husband and keep him indemnified in relation to all credit card liabilities incurred on accounts in her own name.
26.
From the date of these Orders, the Husband shall be solely responsible for and indemnify the Wife in relation to all credit card liabilities incurred on accounts in his own name.
Furniture and Chattels
27.
Within thirty (30) days of the date of these Orders the Wife cause to be made available to the Husband or his nominee for collection any of the following items still remaining in her possession, power or control:
(a) The sports memorabilia located in the pool room of the former matrimonial home;
(b) The safe and any contents relating to the Husband and/or his family’s historical documents;
(c) A pool cue gifted to the Husband by a person named Mr LL;
(d) Two canvas portraits of the children (one of each child); and
(e) The red, white and blue glass vase.
Miscellaneous Orders
28.
The parties comply with all requisitions issued by the Office of State Revenue in relation to any document executed or transaction entered into pursuant to, or to put into effect, by these Orders. In default of either of the parties complying with any requisitions so issued within fourteen (14) days of the date upon which any requisition issues, the party not in default shall be entitled to comply with any of the outstanding requisitions and recovery from the other party in default, the costs and outlays incurred in complying with the requisition; such costs to be calculated in accordance with the Family Law Rules 2004.
29.
In the event that any party to these Orders refuses or neglects to comply with any or all of the provisions of these Orders, the Registrar or a Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed, pursuant to s 106A of the Family Law Act 1975 (Cth), to execute all deeds and documents in the name of the Husband and/or the Wife and to do all acts and things necessary to give validity and operation to these Orders.
30.
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 exclusion of the other party to all property (including choses-in-action in the possession of such party as at the date of these Orders);
(b) Insurance policies remain the sole property of the owner named therein;
(c) Each 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.
Child Support Departure
31.
Pursuant to Part 7, Division 4 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment:
(a) For the period from the date of the final Orders until the date of the Husband’s death, of child support payable by Mr P Bennison to Ms J Bennison for the child, B born … 2001;
(b) For the period from the date of the final Orders until the date of the Husband’s death, of child support payable by Mr P Bennison to Ms J Bennison for the child, C born … 2005.
32.
In lieu of assessed child support the Husband pay the private school expenses and associated expenses relating to the private school attended by each of the children.
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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