Bowen and Bowen and Anor

[2012] FamCA 910

FAMILY COURT OF AUSTRALIA

BOWEN & BOWEN AND ANOR [2012] FamCA 910

FAMILY LAW – PROPERTY – where complex property dispute – where parties reached consent – where corporation joined to facilitate orders – where orders just and equitable in all of the circumstances – orders made by consent.

Family Law Act 1975 (Cth)

APPLICANT: Ms Bowen

RESPONDENT: Mr Bowen

2^nd RESPONDENT: Bowen Pty Ltd

FILE NUMBER: MLC 1320 of 2011

DATE DELIVERED: 3 October 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 3 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk SC and Mr Williams

SOLICITOR FOR THE APPLICANT: Hirst & Co

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Barry & Nilsson Lawyers

Orders

UPON NOTING THAT

(A)The husband in these proceedings is the sole director and shareholder of Bowen Pty Ltd.

(B)The husband, through his Senior Counsel has advised the court that in so far as these Orders bind that corporation:

(i)the corporation has been afforded procedural fairness and, in particular, through its director, knowledge of these proceedings, the material filed by each of the husband and wife in these proceedings and the orders sought to be made binding that corporation;

(ii)the corporation is not prejudiced by the orders binding it and consents to those orders.

IT IS ORDERED THAT:

1. The corporation Bowen Pty Ltd be added as a party to these proceedings.

2. Pursuant to Rule 1.12 of the Family Law Rules 2004, the requirements of Rule 6.03 be dispensed with.

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Exhibit 1 – Terms of Settlement” sealed and attached hereto.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowen & Bowen and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: MLC 1320 of 2011

Ms Bowen

Applicant

And

Mr Bowen

Respondent

And

Bowen Pty Ltd

2^nd Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These property proceedings involved a complex corporate trust structure centred around a very successful business and investments.  Issues live in what was to be a trial commencing before me today emanated, at least in part, from differing valuations obtained from a single expert and otherwise by each of the parties by leave. 

2. Those issues included, for example, difference in opinion as to a capitalisation rate, a discount for minority interest, and the effect, if any, of prospective taxation.

3. The parties were agreed that by reason of the nature of the substantial asset of the parties, namely, their interest in the business and investments to which I have earlier referred, that any entitlement of the wife would need to be met by instalments lest that business structure be placed in significant jeopardy. 

4. Those elements and the dollar differences they produce, alone and in combination, would have rendered a judgment in this matter difficult and made the resolution of those issues by agreement equally difficult. 

5. The parties, with assistance from their legal and, I assume, financial advisers, have been able to resolve their differences and join in having the Court make orders by consent.

6. In discussions between the Court and counsel, it is agreed by both parties that a corporation not yet a party to the proceedings be joined, so as to facilitate a particular aspect of the orders, namely, the provision of security for payments that will be made pursuant to those orders to the wife. 

7. The husband is the sole director and shareholder of that corporation. He agrees through his Senior Counsel that the corporation has been accorded procedural fairness and is not prejudiced by the proposed orders.

8. As I indicated during those discussions, orders will then be made which include a notation to the effect that that corporation has been afforded procedural fairness and has received through its director, the husband, the relevant material in these proceeding, that it suffers no prejudice and, indeed, consents to the order which binds it.

9. The parties are to be congratulated on reaching agreement in what is plainly a difficult matter and are to be commended for the commonsense and intelligence that is axiomatic to the appropriate compromise which they have made.  Their advisers are equally to be commended. 

10. I should make mention by reason of the particular nature of the circumstances of this case and, in particular, the payment of a substantial sum to the wife by instalments, that the nature of the interest involved in the property pool and the agreement of each of the parties that those interests require payments by instalments, see orders which, ultimately, provide for a significant cash payment to be made to the wife over not more than six years. 

11. Section 81 of the Family Law Act 1975 (Cth) requires the Court to bring to an end the financial arrangements between the parties “as far as practicable”.  I am satisfied that the orders do so. 

12. In all of the circumstances of this case, I am satisfied that the minutes of consent reflect orders which are just and equitable as between the parties and I make those orders accordingly by consent.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 3 October 2012.

Associate:

Date:  6 November 2012