Campbell and Campbell

[2009] FamCA 139

FAMILY COURT OF AUSTRALIA

CAMPBELL & CAMPBELL [2009] FamCA 139

FAMILY LAW – PROPERTY SETTLEMENT – Consent orders – s 79(2) Just and equitable

Family Law Act 1975 (Cth)

APPLICANT: Ms Campbell

RESPONDENT: Mr Campbell

FILE NUMBER: MLF 3084 of 2006

DATE DELIVERED: 24 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 24 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS CROCKER

SOLICITOR FOR THE APPLICANT: HOGG & REID

COUNSEL FOR THE RESPONDENT: MS SCOTT McKENZIE

SOLICITOR FOR THE RESPONDENT: CAREW COUNSEL

ORDERS

IT IS ORDERED BY CONSENT:

1. THAT the Husband pay to the Wife the sum of $630,000 ("the payment") on or before 24th March 2009 ("the date").

2. That contemporaneously with the payment:

   1.the Wife relinquish any interest in the real property situate and known as M property more particularly described in Certificate of Title Volume … Folio … and provide a Withdrawal of Caveat with respect to Caveat …;

   2.the Husband indemnify the Wife against all payments and liability pursuant to any mortgage registered over the property including but not limited to the Bendigo Bank mortgage and any other encumbrances and be responsible for all apportionable rates, taxes, and outgoings of or with respect to the real property of whatsoever nature and kind.

3. THAT in the event the whole of the payment has not been made by the date then the real property by forthwith sold altogether out of Court ("the sale") and upon completion of the sale the proceeds of sale be applied:

   i.   first to pay all costs, commissions and expenses of the sale;

   ii.   secondly to discharge the mortgage and any other encumbrance affecting the real property;

   iii.thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly to the Wife;

   iv.fourthly the balance to the husband.

4. THAT no later than four (4) weeks following the default of payment by the Husband the property be listed for sale for auction to be conducted no later than eight (8) weeks following default of payment by the Husband.

5. THAT any further terms and conditions of the sale including the estate agent to handle the sale be as agreed between the parties and in default of agreement either party may apply to the President of the Real Estate Institute of Victoria who shall thereupon appoint a person to decided the terms and condition of the sale including the agent to handle the sale.

6. THAT the parties comply with all directions and sign all necessary documents if required by the Real Estate Agent appointed to sell the property including maintaining the property in good condition for sale, allowing the property to be viewed by prospective buyers at open for inspections or at other reasonable times and any other matter required to sell the property.

7. THAT in the event the husband damages the property or delays or obstructs the sale of the property then the wife have liberty to apply to have any costs associated with the delay deducted from the husband's share of the proceeds.

8. THAT pending payment or completion of sale:

   i.   the husband have the sole use and occupancy of the property and that during such right of use and occupation the husband pay all rates, taxes and like apportionable outgoings on the real property as they fall due;

   ii.   the parties hold their respective interests in the real property upon trust pursuant to these orders; and

   iii.neither party encumber the real property without the consent in writing of the other party.

9. THAT pending payment or completion of sale the Husband continue to comply with payments to the Wife pursuant to Order (7) of the Family Court Orders dated 18 July 2007.

10. THAT the Husband retain to the exclusion of the Wife all the plant and equipment on the real property.

11. THAT the Husband indemnify the Wife against any loans or borrowings with respect to the Husband's parents of whatsoever nature or kind whether past, present or future.

12. THAT with respect to AS Business:

    i.   the Husband retain to the exclusion of the Wife the proceeds of sale of the stock;

    ii.   the Husband retain the exclusion of the Wife any other stock and/or plant and equipment with respect to the business

    iii.the Husband indemnify the Wife with respect to the Bendigo Bank AS Business loan and any other liability past, present or future of whatsoever nature and kind including but not limited to taxation liability;

13. THAT with respect to MC Pty Ltd operating the business MC Business:

    i.   the Husband retain to the exclusion of the Wife any interest in the company and business including all stock and equipment and goodwill;

    ii.   the Husband indemnify the Wife and keep her indemnified against any liabilities associated with the company and business past, present or future of whatsoever nature and kind including but not limited to taxation liability;

    iii.the Wife sign all documents required and do all things necessary to resign as Director of  MC Pty Ltd and transfer her shares to the husband and the husband be responsible for preparing any necessary documentation for this to occur and be responsible for any costs associated with the resignation or transfer of these shares.

14. THAT the Husband be responsible for payment of the Wife's taxation liability arising from her income from MC Pty Ltd including any penalties for the financial year ending 30 June 2006 and that this payment be made within thirty (30) days of the Orders.

15. THAT with respect to CF Pty Ltd:

    i.   the Husband retain to the exclusion of the Wife any interest in the company and business including all stock and equipment and goodwill;

    ii.   the Husband indemnify the Wife and keep her indemnified against any liabilities associated with the company and business past, present or future of whatsoever nature and kind including but not limited to taxation liability;

    iii.the Wife sign all documents required and do all things necessary to resign as Director of  CF Pty Ltd and transfer her shares to the husband and the husband be responsible for preparing any necessary documentation for this to occur and be responsible for any costs associated with the resignation or transfer of these shares.

SUPERANNUATION ORDERS

Husband's Superannuation in Norwich Union Superannuation Trust

1. THAT paragraphs (17) to (22) of these Orders are binding on the trustee company of the Norwich Union Superannuation Trust ("the fund"), being Nulis Nominees (Australia) Limited (“the trustee”).  The trustee has been afforded procedural fairness having had no less than twenty-eight (28) days notice of the intention of the parties to seek the Orders as set out herein, and no objections have been made by the trustee of the fund.

2. THAT in relation to the Husband's superannuation entitlements in the fund:

   i.   the Husband MR CAMPBELL born … November 1952 is a member of the fund, member number …;

   ii.   the non-member spouse is the Wife MS CAMPBELL born … March 1964;

   iii.the base amount to be allocated to the Wife in the fund is the amount of $80,000.

3. THAT pursuant to Section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the husband in the fund, the trustee pay to the wife the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation Regulations) 2001, using the base amount and there be a corresponding reduction in the entitlement of the husband.

4. THAT order 18 has effect from the operative time.

5. THAT the operative time for the purposes of these Orders is four (4) business days after the date of service of these Orders upon the trustee of the fund.

6. THAT within fourteen (14) days of becoming entitled to receive a superannuation benefit from the fund, the parties will give the trustee of the fund:

   i.   all such forms as are necessary to enable it to determine the nature and quantum of the wife’s superannuation entitlement; and

   ii.   any other related information the trustee may reasonably require.

7. THAT there be liberty to each party and the trustee of the fund to apply regarding the implementation of these Orders affecting the interests of the Husband and the Wife in the fund.

8. THAT until such time as:

   i.   a separate account in the name of the wife has been established;

   ii.   the superannuation split pursuant to these Orders has been rolled over into a separate account for her;

   iii.the wife satisfies a condition of release and is paid the payment split created by Order 18 hereof; or

   iv.the wife executes a waiver of rights within the meaning of Section 90MZA of the Family Law Act 1975 regarding the payment split created by Order 18 hereof:

The husband:

i.give to the wife written notice not less than twenty-eight (28) days before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or part to his entitlement in the fund;

ii.direct and authorise the trustee of the fund to communicate with the wife and/or any person authorised by her in writing:

iii.answer any reasonable inquiries as may be made by her or on her behalf from time to time regarding his/her entitlement in the fund; and

iv.give to the wife and/or her authorised representative a copy of any notice of any application or request by the husband which seeks release of entitlements in the fund in so far as that release may effect the wife’s entitlement in the fund pursuant to these Orders.

v.is hereby restrained by himself, his servants or agents from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the full benefits in the fund to which she is entitled pursuant to these Orders.

1. THAT in the event that the superannuation split to the wife pursuant to these Orders can be rolled over into a separate account to her, each of the parties will do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

2. THAT the wife's solicitors cause a sealed copy of these Orders to be served upon the Trustee of the Fund within seven (7) days of the making of the Orders.

CAMPBELL Superannuation Fund

1. THAT paragraphs (27) to (35) of these Orders are binding on the trustee of the Campbell Superannuation Fund ("the fund"). The trustee MC Pty Ltd has been afforded procedural fairness having had no less than twenty-eight (28) days notice of the intention of the parties to seek the Orders as set out herein, and no objections have been made by the trustee of the fund.

2. THAT in accordance with s90MT(1)(b) of the Family Law Act 1975:

   i.   the husband is entitled to the specified percentage being 100% of each splittable payment made out of the wife's interest in the fund;

   ii.   the wife's entitlement is correspondingly reduced.

3. THAT paragraph 27 has effect from the operative time.

4. THAT the operative time is the date of transfer of the transferable benefits.

5. THAT MC Pty Ltd being the Trustee of the Fund ("the Trustee") do all such acts and things and sign all such documents as may be necessary to:

   i.   calculate in accordance with the requirements of the Family Law Act 1975 the entitlement created in paragraph 27 of these Orders; and

   ii.   pay the entitlements whenever a splittable payment becomes payable.

6. THAT immediately subsequent to the superannuation split referred to in Order 27 and in relation to the Husband's superannuation entitlements in the fund:

   i.   the Husband MR CAMPBELL born … November 1952 is a member of the fund

   ii.   the non-member spouse is the Wife MS CAMPBELL born … March 1964;

   iii.the base amount to be allocated to the Wife in the fund is the amount of $30,000.

7. THAT pursuant to Section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the husband in the fund, the trustee pay to the wife the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation Regulations) 2001, using the base amount and there be a corresponding reduction in the entitlement of the husband.

8. THAT order 32 has effect from the operative time.

9. THAT the operative time for the purposes of these Orders is immediately subsequent to the superannuation split referred to in paragraph (27) of these Orders.

10. THAT within fourteen (14) days of becoming entitled to receive a superannuation benefit from the fund, the parties will give the trustee of the fund:

    i.   all such forms as are necessary to enable it to determine the nature and quantum of the wife’s superannuation entitlement; and

    ii.   any other related information the trustee may reasonably require.

11. THAT there be liberty to each party and the trustee of the fund to apply regarding the implementation of these Orders affecting the interests of the Husband and the Wife in the fund.

12. THAT until such time as:

    i.   a separate account in the name of the wife has been established;

    ii.   the superannuation split pursuant to these Orders has been rolled over into a separate account for her;

    iii.the wife satisfies a condition of release and is paid the payment split created by Order 32 hereof; or

    iv.the wife executes a waiver of rights within the meaning of Section 90MZA of the Family Law Act 1975 regarding the payment split created by Order 32 hereof:

The husband:

i.give to the wife written notice not less than twenty-eight (28) days before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or part to his entitlement in the fund;

ii.direct and authorise the trustee of the fund to communicate with the wife and/or any person authorised by her in writing:

iii.answer any reasonable inquiries as may be made by her or on her behalf from time to time regarding his/her entitlement in the fund; and

iv.give to the wife and/or her authorised representative a copy of any notice of any application or request by the husband which seeks release of entitlements in the fund in so far as that release may effect the wife’s entitlement in the fund pursuant to these Orders.

v.is hereby restrained by himself, his servants or agents from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the full benefits in the fund to which she is entitled pursuant to these Orders.

1. THAT in the event that the superannuation split to the wife pursuant to these Orders can be rolled over into a separate account to her, each of the parties will do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

2. THAT the Wife's solicitors cause a sealed copy of these Orders to be served upon the Trustee of the Fund within seven (7) days of the making of the Orders.

3. THAT the Husband otherwise retain all other entitlements in the Campbell Superannuation Fund.

4. THAT within contemporaneously with the superannuation split referred to in paragraph 31 the wife do all things and sign all documents as may be required to resign as a trustee of the Campbell Superannuation Fund ("the Fund") including doing all things and signing all documents as may be required to resign as a director and transfer any shareholdings which she may hold in any corporate trustee of the Fund.

5. THAT as and from the making of these Orders the Husband be responsible for an indemnify the wife in relation to the Fund and any liability of the Wife personally arising out of her involvement in the Fund, past, present or future as follows:

   i.   any and all liability for payment of tax to the Deputy Commissioner of Taxation past, present or future howsoever arising including but no limited to capital gains tax;

   ii.   any and all liability of the Wife for individual income tax in respect of the Fund past, present or future and howsoever arising including but no limited to capital gains tax;

   iii.any and all creditors of the Fund;

   iv.any and all borrowings of the Fund

6. THAT unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

   i.   each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of the orders. The furniture, personal possessions and like chattels in the real property are considered to be in the possession of the husband;

   ii.   each party hereby foregoes any claims they may have to any superannuation benefits belonging to or earned by the other;

   iii.all insurance policies to become the sole property of the owner named therein;

   iv.each party to be solely liable for and indemnify the other against any liability encumbering any item of property to which the party is entitled pursuant to these orders;

   v.any joint tenancy of the parties in any real or personal estate is herby expressly severed.

7. THAT subject to Order (9) of these Orders the Family Court Orders dated 18 July 2007 be otherwise dismissed.

8. THAT all extant applications be forthwith dismissed and otherwise all proceedings be removed from the docket of pending cases before Justice Young.

9. THAT all documents released by subpoena be returned by the Subpoena Clerk from the Melbourne Registry of the Family Court of Australia to American Express.

AND THE COURT NOTES

A.THAT the parties intend these Orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

B.THAT the parties have entered into a Binding Child Support Agreement which is to be registered with the Child Support Agency pursuant to provisions of Part 6 of the Assessment Act and with the Family Court of Australia at Melbourne pursuant to Rule 23.01 of the Family Law Rules.

C.THAT a copy of the Binding Child Support Agreement has been marked as "Exhibit 1" and has been retained on the Court file.

D.THAT procedural fairness has been accorded to AVIVA Superannuation Fund and correspondence from them has been marked as "Exhibit 2" and has been retained on the Court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3084 of 2006

MS CAMPBELL

Applicant

And

MR CAMPBELL

Respondent

REASONS FOR JUDGMENT

1. In the matter of Campbell, I have before me consent orders and an accompanying Child Support Agreement.  The orders deal with all property and financial issues between the parties.  I have received a submission from solicitors for both parties supporting the orders on the basis that they and the parties believe they are just and equitable and determined properly all financial and property outcomes between Mr and Mrs Campbell.

2. I do well understand there is a level both of financial commonsense and a pragmatic approach to these orders.  There is a payment to be made to the wife in the short term and other benefits under the orders that total approximately $750,000.  On the other hand, the husband retains the property assets in the business identified in the orders and there is a superannuation division with appropriate procedural fairness afforded to each of the superannuation groups.

3. The obligation of the court is to proclaim that the orders are final and are just and equitable.  It does not involve an absolute mathematical exercise.  It may have been different if the matter had have run on defended valuation and contribution issues but in the context of this case and having the background of reading the file previously, I am certainly prepared to conclude that the orders sought by the parties on a consent basis are appropriate. 

1. I declare they to be just and equitable under section 79(2) of the Family Law Act 1975. I ask the solicitors to confirm that in an exchange of letters between themselves. I do not intend to necessarily order a transcript of this fact, given that these are consent orders.