Bree and Bree and Anor

[2018] FamCA 818

FAMILY COURT OF AUSTRALIA

BREE & BREE AND ANOR [2018] FamCA 818

FAMILY LAW – CONSENT ORDERS – PROPERTY – whether consent terms favouring the wife are just and equitable – unresolved characterisation of third-party receipts – where consent terms just and equitable. 

Family Law Act 1975 (Cth) – s 75(2)(ha)

APPLICANT: Mr Bree

RESPONDENT: Ms Bree

SECOND RESPONDENT: Mr A Bree

FILE NUMBER: CAC 2356 of 2017

DATE DELIVERED: 8 October 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 8 October 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Dobinson Davey Clifford Simpson

SOLICITOR FOR THE RESPONDENT: Watts McCray

COUNSEL FOR THE SECOND RESPONDENT: Mr J Haddock

SOLICITOR FOR THE SECOND RESPONDENT: O'Sullivan Davies

Orders

THE COURT NOTES THAT:

A.The following definitions apply for the purposes of these Orders:

I."Applicant Husband" or "Husband" means Mr Bree, born on … 1979.

II."Bree Group" means each and all of the following companies and trusts both jointly and severally:

i.B Pty Ltd, having ACN …, a company registered in Western Australia and having its registered office at E Street, Perth, WA, 6000 in its own right and as trustee for:

1.C Trust (formerly the F Trust). 

2.D Trust (formerly the G Trust). 

3.H Trust (formerly the I Trust). 

ii.K Pty Ltd, having ACN …, a company registered in the Australian Capital Territory and having its registered office at L Street, Suburb M, ACT, ... 

iii.J Pty Ltd, having ACN …, a company registered in Western Australia and having its registered office at E Street, Perth, WA, 6000 in its own right and as trustee for N Trust (formerly the O Trust).

iv.P Pty Ltd, having ACN …, a company registered in Western Australia and having its registered office at E Street, Perth, WA, 6000 in its own right and as trustee for the Q Trust.

v.R Pty Ltd, having ACN …, a company registered in Western Australia and having its registered office at E Street, Perth, WA, 6000. R Pty Ltd as Trustee for The J Superfund.

III."Suburb T Property" means the property situated at S Street, Suburb T being the whole of the land contained in Section …, Block … on Deposited Plan ….

IV."Husband's parents" means Mr A Bree and Ms U Bree whether individually or jointly.

V."Joint Account" means the Australian and New Zealand Banking Corporation bank account having BSB … and account number #43 styled in the joint names of the parties.

VI."Parties" means the Applicant Husband and the Respondent Wife.

VII."W Street and V Street Funds" means the monies advanced to the Parties by the Husband's parents with respect to the properties located at V Street, Suburb T, ACT and W Street, Suburb X, ACT which have since been sold by the Parties.  The net sale proceeds from the sale of V Street, Suburb T are held in the Joint Account. 

VIII."Respondent Wife" or "Wife" means Ms Bree, born … 1981.

B.With respect to the W Street and V Street Funds, the Husband asserts that the Husband and Wife are indebted to the Husband's Father pursuant to a Deed of Loan dated 14 August 2014 entered into between Mr A Bree, the Husband, and the Wife. The Wife asserts that the funds advanced by the Husband's Father/Husband's parents were a gift to the parties and the Deed of Loan dated 14 August 2014 was subsequently signed by the Husband's Father and the parties in circumstances where the Wife was misled and amounted to unconscionable conduct and where it is contended that it is unenforceable.  The Husband and the Husband’s parents deny these assertions.  On 26 March 2018, the Husband's Father instituted proceedings in the Supreme Court of the Australian Capital Territory with respect to the W Street and V Street Funds (“the Supreme Court Proceedings”).

C.The Supreme Court Proceedings have been resolved on terms which are consistent with these Consent Orders and in the form of the Minute of General form of Consent Order signed by all of the parties and attached.

D.Pursuant to Section 81 of the Family Law Act 1975 (Cth) the parties intend these Orders to be in full and final settlement of any financial claims each may have against the other for property settlement or spousal maintenance and each party undertakes to make no further claim against the other by way of property settlement or spousal maintenance.

E.The provisions of Section 77A of the Family Law Act 1975 (Cth) are applicable in these proceedings.

F.The parties hereby acknowledge that pending completion of the Orders; they hold their respective interests in the property on trust and in accordance with these Orders.

G.On 7 September 2018, these proceedings were transferred from the Federal Circuit Court of Australia to the Family Court of Australia and that Mr A Bree was joined as a party to these proceedings by Orders made by the Federal Circuit Court of Australia of its own motion. 

BY CONSENT IT IS ORDERED THAT:

PROPERTY SETTLEMENT AND LUMP SUM SPOUSAL MAINTENANCE

1. Within 7 days of the date of this Order and contemporaneously with respect to each sub-paragraph, the parties will do all such things and sign all such documents necessary to:

   1.1Pay $500,000 to the Respondent Wife from the Joint Account (“Lump Sum”).

   1.2Pay the balance of funds remaining in the Joint Account to the Applicant Husband.

   1.3Close the Joint Account.

2. Paragraph 1.1 above is an Order to which section 77A of the Family Law Act 1975 applies and a portion of $100,000 of the Lump Sum is attributable to the provision of maintenance for the Wife.

SUPERANNUATION SPLITTING ORDERS

1. In accordance with s. 90MT(1)(a) of the Family Law Act 1975 ("the Act"), whenever a splittable payment within the meaning of s. 90ME of the Act becomes payable to or on behalf of Mr Bree from his interest in the Public Sector Superannuation Scheme ("the PSS"), Ms Bree is entitled to be paid by "The Trustee of the PSS" the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $80,000 and there is a corresponding reduction in the entitlement Mr Bree would have had but for these Orders.

2. The operative time for Order 3 is 4 business days after the service of these Orders on the Trustee of the PSS.

3. THE COURT NOTES that the parties acknowledge that this Order and payments made as a result, will be reflected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for separate superannuation interests to be created for the non-member spouse and for consequential effects on payment.

TRANSFERS, ASSIGNMENTS AND INJUNCTION

1. Within 28 days from the date of this Order and contemporaneously with respect to each sub-paragraph, in circumstances where the parties have not already complied or taken steps to comply:

   6.1The Parties will do all acts and things and sign all documents necessary for the Wife to disclaim any and all interest which she may have as a beneficiary of the Trusts that comprise the Bree Group and for the purposes of this Order the Husband will prepare and provide to the Wife, at his expense, all such documents necessary to give effect to this Order.

   6.2The Parties will do all things and sign all documents necessary, including the provision of notices in writing, for the Respondent Wife to transfer to the Applicant Husband or his nominee, at the Husband's expense, all her right, title and interest (if any) in any entity that comprises part of the Bree Group and for the purposes of this Order the Husband will prepare and provide to the Wife, at his expense, all such documents necessary to give effect to this Order.

   6.3The Husband will do all things necessary at his cost, and the Wife will sign all documents provided to her as are necessary to procure for the Wife a release and/or discharge from liability, if any, pursuant to all mortgages, financial facilities and charges in relation to the Bree Group and/or the Husband's parents, including personal guarantees (if any) to any creditor in relation to the Bree Group.

   6.4The Wife sign a Deed Poll (per copy attached) assigning her entitlements to the Husband in compliance with this Order 6.

   6.5The Wife be restrained and an injunction be granted restraining the Wife from exercising any further rights, benefits, claims, entitlements or interest in and to the entities referred to in this paragraph (save for the purpose of complying with these Orders or unless otherwise agreed in writing after the date of these Orders);

   6.6The Wife sign a Deed Poll (per the copies attached) in relation to discretionary trusts associated with the Bree Group to confirm her renunciation of any further rights, benefits, claims, entitlements and / or interests in the discretionary trusts;

   6.7The Wife acknowledges that the Husband’s parents will be signing a Deed of Exclusion (per the copies attached) in relation to discretionary trusts associated with the Bree Group to include her in the excluded class of beneficiaries of the discretionary trusts.

2. Within 28 days from the date of this Order the Wife do all things and sign all documents necessary, at the Husband’s expense, to transfer and otherwise assign to the Husband (or his nominee) interest in any unpaid monies or unpaid present entitlement owing to her from each of the following:

   7.1The Husband’s parents.

   7.2The Bree Group.

   7.3Any and all other entities associated with the Husband’s Parents.

   7.4Any and all entities associated with the Husband.

DECLARATIONS

1. The Husband is declared as at the date of these Orders to be solely liable for any and all liability of whatsoever nature and kind, whenever and/or howsoever arising with respect to the W Street and V Street Funds.

2. The Husband is declared as at the date of these Orders to be solely liable in respect of any and all liabilities of the Wife of whatsoever nature and kind, whenever and/or howsoever arising that are owed by the parties either jointly or severally to:

   9.1The Husband's parents; and/or

   9.2Any and all entities associated with the husband; and/or

   9.3The Bree Group.

3. Except as specifically provided for by these Orders to the contrary, the Respondent Wife is declared to be as against the Applicant Husband and to the exclusion of the Applicant Husband, the sole legal, equitable and beneficial owner of all other property and chattels of whatsoever nature and kind in the sole name of the Respondent Wife or in the possession of the Respondent Wife as at the date of the making of these Orders, including the Wife's superannuation interest in the Public Sector Superannuation Scheme. 

4. Except as specifically provided for by these Orders to the contrary, the Applicant Husband is declared to be as against the Respondent Wife and to the exclusion of the Respondent Wife, the sole legal, equitable and beneficial owner of all other property and chattels of whatsoever nature and kind in the sole name of the Applicant Husband or in the possession of the Applicant Husband as at the date of the making of these Orders.

5. Any insurance policy will remain the sole property of the beneficiary named therein.

   RELEASES AND INDEMNITIES

6. The Husband and the Second Respondent by these Orders wholly release and indemnify the Wife and will keep the Wife indemnified in relation to any liability of hers to the Husband’s parents, the Husband and the Bree Group of whatsoever nature and kind, whenever and howsoever, including with respect to the W Street and V Street Funds including the alleged loan pursuant to the Deed of Loan dated 14 August 2014.

7. The Husband hereby indemnifies and shall keep indemnified the Wife in respect of all liabilities of whatsoever nature and kind, whenever and/or howsoever accrued and/or arising including but not limited to all past, existing or future taxation liabilities with respect to the Husband or the Bree Group or of either party personally arising out of or in connection with any interest in the entities of the Bree Group of whatsoever nature, including any loan account, office of employment, mortgages, overdrafts, business and commercial loans, financial facilities and charges of whatsoever nature.

8. As and from the date of these Orders, the Husband and the Second Respondent will release and indemnify the Wife and keep the Wife indemnified against any liability of whatsoever nature and kind, whenever and/or howsoever arising in respect of any liability of whatsoever nature and kind and howsoever arising including whether by reason of:

   15.1Any involvement the Wife may have had in the Bree Group; and/or

   15.2Any unpaid present entitlements the Wife has in the Bree Group; and/or

   15.3Any unpaid present entitlements the Wife has in any and all entities associated with the Husband; and/or

   15.4The Wife having been a beneficiary of any of the Trust entities associated with the Bree Group and/or entities associated with the Husband; and/or

   15.5The alleged receipt by the Wife of any money from the companies and trusts associated with the Bree Group and or entities associated with the Husband; and/or

   15.6The receipt by the Wife of any money from the Husband's Parents.

9. Except as specifically provided for by these Orders to the contrary:

   16.1Each of the Applicant Husband and the Respondent Wife releases the other from all debts owing from one to the other.

   16.2The Applicant Husband will be solely responsible for any debt or liability in his sole name as at the date of these Orders and will indemnify the Respondent Wife and keep the Respondent Wife indemnified with respect to those liabilities.

   16.3The Respondent Wife will be solely responsible for any debt or liability in her sole name as at the date of these Orders and will indemnify the Applicant Husband and keep the Applicant Husband indemnified with respect to those liabilities. 

ANCILLARY ORDER

1. If either party refuses or neglects to sign within 14 days of a written request to do so any documents necessary to put into effect to all or any of the terms of these Orders the Registrar of the Canberra Registry of the Family Court of Australia is appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of the defaulting party and that:

   17.1The Registrar do all necessary acts and things to give force and effect to these Orders; and

   17.2The defaulting party pay the costs of the other party on an indemnity basis.

PROCEDURAL ORDER AND NO ORDER AS TO COSTS

1. The parties be at liberty to provide a sealed copy of these Orders to the Bree Group (including any and all other associated entities).

2. Subject to these Orders, all extant applications are hereby withdrawn and dismissed with no Order as to Costs.

   NOTATIONS

The Court notes that:

A.Ms U Bree and each of the entities comprising the Bree Group consent to the making of these Orders; and

B.Ms U Bree and each of the entities comprising the Bree Group have been accorded procedural fairness in relation to the making of these Orders.

[Annexures referred to in the orders are not attached to the Reasons for Judgment]

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 2356 of 2017

Mr Bree

Applicant

And

Ms Bree

Respondent

And

Mr A Bree
Second Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In this matter the parties advised the Court that they have reached an agreement as to the final disposition of all outstanding claims between them, not only in this jurisdiction, but also in relation to proceedings between the parties being conducted in the Supreme Court of the Australian Capital Territory.

2. In coming to the resolution of the matter it should be noted that each party was represented by an experienced family lawyer.  They advise that by virtue of a negotiation process they have come to these agreed terms approximately a month ago. 

3. Each asserts that in coming to this agreement there is some uncertainty regarding the underlying financial circumstances of the parties.  For example, whether particular funds from a related third party in the hands of the husband and wife should be considered to be loans, or should be considered to be a contribution on the part of the husband. 

4. They have also disputed the extent to which there may be benefits available to either the husband or the wife in relation to trusts for which they have been beneficiaries.

5. Insofar as the wife deals with these uncertainties, that is, in the characterisation of the pool, she notes that should there be a resolution of the dispute in her favour, that is, whether an item is characterised as a loan or a contribution and that, as is in her case, the amounts are not a loan but a contribution on the part of the husband, then this would constitute a significant contribution on his part.  That characterisation, she accepts, would colour the outcome that she was to receive.

6. Insofar as the husband deals with the uncertainties, the principal uncertainty relates to the characterisation of monies received by the parties as gifts rather than as loans.  He too accepts that even if they are found to be gifts then that impacts upon a consideration of how they form a contribution on his part.  The husband also accepts that the wife will have the long-term primary care of their two young children, currently aged three and six years old.  While he says that the settlement is generous, he accepts that it is within the bounds of justice and equity. 

7. Each of the parties, through their lawyers, assert that the orders are just and equitable.

8. In terms of the nature of the dispute between the parties, it appears that of the property that is available neither party disputes that the monies constitute the property of that party, but they do dispute whether or not that property may be impacted by the finding that a loan is owed by the parties to a third party. That is, they both appear to have accepted that the monies are available, but they differ as to whether or not they are the subject of a loan. As to whether or not they are the subject of a loan, with such a matter necessarily to be considered pursuant to s 75(2)(ha) of the Family Law Act 1975, it may be observed that the second respondent makes no complaint about the orders being made insofar as they impact upon the second respondent's assertion of a loan.  I have been advised that this occurs in the context of the second respondent also being a grandfather to the young two children.

9. Each of the parties urges upon me that this is an appropriate disposition of the proceedings which will end the proceedings here and in the Supreme Court of the ACT. It will finally resolve the proceedings between them. As noted, the second respondent does not complain about the impact of the orders upon the second respondent. It appears then, particularly on the acceptance by the experienced family lawyers appearing for each of the parties, that the orders fall within the bounds of what is just and equitable.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 8 October 2018.

Associate:

Date:  9 October 2018