Bowen and Bowen

[2008] FamCA 900

FAMILY COURT OF AUSTRALIA

BOWEN & BOWEN [2008] FamCA 900

FAMILY LAW – PROPERTY ORDERS – s 79(2) Just and equitable

Family Law Act 1975 (Cth)

APPLICANT: MR BOWEN

RESPONDENT: MS BOWEN

FILE NUMBER: MLF 2877 of 2006

DATE DELIVERED: 21 OCTOBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 21 OCTOBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR LEFEBVRE

SOLICITOR FOR THE APPLICANT: WESTMINSTER LAWYERS

COUNSEL FOR THE RESPONDENT: MR MIDDLEMIS

SOLICITOR FOR THE RESPONDENT: J.A. MIDDLEMIS

ORDERS

IT IS ORDERED BY CONSENT:

1. THAT within seven (7) days of the date of these orders the parties cause ANZ Term Deposit Account No. … to be disbursed as follows:

   a)the sum of $175,000 to the wife;

   b)the balance of approximately $69,000 to the husband.

2. THAT total interest earned on the said Term Deposit Account be apportioned as to the income equally between the parties for taxation purposes.

3. THAT should the sale of the parties’ former property at V be assessed for the payment of capital gains tax the husband pay and indemnify the wife in respect of such tax.

4. THAT within thirty (30) days of the date of these orders the husband cause mortgage registered no. … to the National Australia Bank ("the mortgage") to be discharged.

5. THAT upon discharge of the mortgage the wife transfer to the husband at his expense all of her right, title and interest in the real property situate at K and described in Certificate Of Title Volume … Folio … ("the K Property").

6. THAT if the husband is in default of discharging the mortgage for a period of thirty (30) days then the parties forthwith cause the K Property to be sold ("the sale").

7. THAT liberty be reserved to each party to apply for orders and directions to give effect to the sale.

8. THAT the proceeds of the sale be applied:

   a)first, to pay sale costs;

   b)secondly, to discharge the mortgage;

   c)thirdly, to pay the balance to the husband.

9. THAT upon the transfer referred to in paragraph 5 or the sale referred to in paragraph 6 the wife:

   a)resign as a director of C Pty Ltd … (“C Pty Ltd”) and transfer to the husband or his nominee her shareholding therein;

   b)renounce any entitlement or claim she may have in respect of C Pty Ltd and the Bowen Family Trust ("the Family Trust");

   c)assign to the husband or his nominee any money standing to her credit in any beneficiary loan account with the Family Trust.

10. THAT upon the wife's compliance with paragraph 9 hereof the husband indemnify her against:

    a)all debts and liabilities of C Pty Ltd and/or the Family Trust (including any taxation liabilities and any liabilities relating to the “S” investment); and

    b)any loans she may have from C Pty Ltd and/or the Family Trust or any other liability she may have to them.

11. THAT the wife renounce any entitlement or claim she may have in respect of B Pty Ltd ACN …, L Pty Ltd …, the B Unit Trust and any associated entities ("the B Entities").

12. THAT the husband indemnify the wife in respect of all debts and liabilities of the B Entities.

13. THAT within thirty (30) days of the date of these orders the husband transfer to the wife at her expense ownership and registration of Landcruiser motor vehicle registered no. ….

14. THAT the husband be solely liable for and indemnify the wife against:

    a)his personal tax liabilities;

    b)the CUA loan in his name;

    c)all credit card liabilities in his name.

15. THAT the wife be solely liable for and indemnify the husband against:

    a)her personal tax liabilities;

    b)her HECS debt.

16. THAT 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 to all other property in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the K Property being deemed to be in the possession of the husband);

    b)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;

    c)each party retain their superannuation and related work-based entitlements;

    d)any insurance policies are to remain the sole property of the life insured named therein.

17. THAT the husband's application filed 5 October 2006 and the cross-application contained in the wife's response filed 9 November 2006 be otherwise dismissed.

18. THAT the ex tempore reasons for judgement be transcribed, placed on the court file and forwarded to the parties’ solicitors.

19. THAT all subpoenaed documents on the court file be returned to the relevant subpoenaed parties by the subpoenas clerk.

20. THAT the proceedings be removed from the docket of Young J.

THE COURT NOTES: 

1. THAT the parties intend that these orders shall as far as practicable finally determine their financial relationship and avoid further proceedings between them.

2. THAT the court declared pursuant to section 79(2) that the orders herein are just and equitable.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2877 of 2006

MR BOWEN

Applicant

And

MS BOWEN

Respondent

REASONS FOR JUDGMENT

1. The matter of Bowen has settled out of court and today Mr Lefebvre, solicitor for the husband, and Mr Middlemis, solicitor for the wife, asked for consent property orders to be announced. 

2. I have read the file and am aware of the background and all of the evidence to this case.  There are limited assets.  The K property is to be retained by the husband and the younger children of the marriage will continue to live with him and be educated in regional Victoria, subject to any other ongoing discussion or arrangement between the parties.

3. The Melbourne‑based home at V has been sold, and there is an apportionment of the net proceeds of sale in paragraph 1, subject to any applicable capital gains tax that may be assessed, and which is the husband's responsibility. 

4. I have an understanding of the employment and income of the parties.  There are specific debts that each of them retain that are encompassed within the orders as drafted.  The solicitors inform me the effect of the order is the division effectively 60:40 in the wife's favour.  It is a long marriage.  There are very substantial contributions made as homemaker and as parent, and also in their business and respective employment.  The husband has the potential security of better income, but that is subject to market conditions.

5. What is important about this order is that it achieves finality between the parties. I know it has been negotiated over a lengthy period. Ultimately, I am satisfied that it is proper, and for the purposes of section 79(2) of the Family Law Act 1975 I declare that the orders as proposed are just and equitable. Accordingly, I pronounce orders in the form as to be amended pursuant to the discussions today, and which Mr Lefebvre will then forward to my associate. I will subsequently execute the 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: