Bonner and Bonner

[2011] FamCA 914

FAMILY COURT OF AUSTRALIA

BONNER & BONNER [2011] FamCA 914

FAMILY LAW – Property settlement – Husband bankrupt – Agreement between wife and trustee approved – Determination of wife’s entitlement as against husband on an undefended basis.

Family Law Act 1975 (Cth)

APPLICANT: Ms Bonner

RESPONDENT: Ms Bonner

FILE NUMBER: MLC 1166 of 2010

DATE DELIVERED: 9 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Fielding

SOLICITOR FOR THE APPLICANT: Lewis Holdway

THE RESPONDENT: No appearance

COUNSEL FOR THE ESTATE

OF THE BANKRUPT HUSBAND:

Mr Kourtis

SOLICITOR FOR THE ESTATE

OF THE BANKRUPT HUSBAND

McKean & Park

Orders

1. THAT by consent in terms of paragraphs 1 – 11 and 25 – 27 of the attached minutes.

2. THAT orders of the court in terms of paragraphs 12 – 22 of the attached minutes.

3. THAT the solicitor for the trustee engross the minute and email it to the court within seven (7) days.

4. THAT all outstanding applications are otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1166 of 2010

Ms Bonner

Applicant

And

Mr Bonner

Respondent

REASONS FOR JUDGMENT

1. This is a most unusual situation in that the proceedings are property proceedings.  The wife is the applicant and there are two respondents – the husband, in his own right, and the second respondent, the trustee of the bankrupt estate of the husband. 

2. As between the wife and the trustee in bankruptcy, the issues have been resolved and, having regard to the limit of amount of equity involved and the way in which the settlement is structured, I am quite satisfied that I am being asked to make a proper order as well as one which is just and equitable as between the wife and the trustee in bankruptcy.

3. The issue between the husband and the wife must only therefore relate to property that is not covered by the bankruptcy, and in this case there is a limited amount of superannuation. 

4. The wife’s evidence is set out in her affidavit filed on 29 August 2011.  In that affidavit, she sets out that she relies on previous affidavits which refer to the background of the marriage and, more importantly, that during the latter part of the relationship the husband made risky business decisions, and regularly gave away large amounts of money without her permission.

5. One might conclude that is corroborated by the fact that the husband is now a bankrupt.  There are a number of corporate entities involved, but the wife has made a significant contribution over the years of the marriage. 

6. Section 79(4) requires the Court to look at section 75(2) of the Act.  The wife describes herself as being in reasonable health and having responsibilities for children.  She has a maintenance order that has never been complied with, and she is currently living on a pension.

7. The proposed order which gives her a base amount of $20,000 out of the husband’s superannuation entitlement, is a very sensible order in the circumstances.  I am satisfied it is just and equitable. 

8. I am also satisfied that the trustee of the superannuation fund has been given appropriate notice.  The trustee wrote a letter on 1 November 2011 which I will mark as an exhibit, in which it indicates that the correct trustee of the same fund is not that which was described in the minutes, but in fact D Pty Ltd.  I have amended the minutes accordingly.  In the matter of Bonner I will make orders by consent of the wife and the trustee in bankruptcy in the terms set out in paragraphs 1 to 11, and 25 to 27, and I will make orders of the Court in terms of paragraphs 12 to 22, as orders of the Court, as between the husband and the wife.

RECORDED  :  NOT TRANSCRIBED

1. Those are final orders.  I will also make an order dismissing all outstanding proceedings between the parties.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 November 2011.

Associate: 

Date:  7 December 2011