FAMILY COURT OF AUSTRALIA
| CONRAD & CONRAD AND ANOR | [2019] FamCA 106 |
| FAMILY LAW – PROPERTY – Where there are three discretionary trusts which are the source of dispute among the parties – Whether any or all of the trusts are financial resources of the husband which should be included in a consideration of appropriate property adjustment orders between the parties – Where there are also various amounts alleged to be owed by the parties to the trusts – Where there is also a dispute about the property purchased by the husband and his sister and the nature of the husband’s interest in it – Where there is a dispute as to the role of the husband and his sister in the running of the trusts and therefore their respective interests in the trusts – Where the credibility of the parties was very influential in determining this dispute – Where caution is to be exercised when considering the evidence of the husband and his sister even when there were contemporaneous written records – Where it is just and equitable in all the circumstances that the net property pool is to be divided 55 per cent to the Applicant wife and 45 per cent to the First Respondent husband – Where the amount owed by the wife to the Intervener is to be paid directly to the Intervener by the husband out of the wife’s share of the property. FAMILY LAW – SPOUSAL MAINTENANCE – Where spousal maintenance orders were previously made between the parties – Where the husband was required to pay spousal maintenance to the wife as well as a lump sum for arrears in spousal maintenance – Where the husband ceased making payments – Where the husband applied to have the Order discharged, suspended or varied – Where the application was dismissed by a Senior Registrar and the husband sought a review of the decision – Where the application for review was determined at trial – Where the husband was found to have had the capacity to make payments despite changes in his circumstances – Where the application for review of the decision is dismissed – Where ongoing spousal maintenance is also in dispute – Where it is not justified to order ongoing spousal maintenance – Where the husband will be required to pay the property settlement amount, the arrears of spousal maintenance and spousal maintenance on the same terms ordered previously only until these obligations are met. |
| Duties Act 2001 (Qld) Family Law Act 1975 (Cth) Limitation of Actions Act 1974 (Qld) Property Law Act 1974 (Qld) |
| 400 George Street (Qld) Pty Limited v BG International [2012] 2 Qd R 302 Calverly v Green (1984) 155 CLR 242 Commercial Bank of Australia Ltd v G H Dean & Co Pty Ltd [1983] 2 Qd R 204 |
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- AGLC
- Conrad and Conrad & Anor [2019] FamCA 106
- Case
- [2019] FamCA 106
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent to which the husband's interests in the three discretionary trusts should be considered financial resources for the purpose of property adjustment orders. Additionally, the court had to resolve disputes regarding the husband's and his sister's roles and respective interests in these trusts, as well as the husband's interest in jointly held property. The court also considered an application by the husband to discharge, suspend, or vary existing interim spousal maintenance orders, and whether ongoing spousal maintenance was justified.
Forrest J applied principles of family law concerning the identification and valuation of financial resources, noting that caution was warranted when assessing the evidence of the husband and his sister, even when supported by contemporaneous records. The court found it just and equitable to divide the net property pool 55 per cent in favour of the applicant wife and 45 per cent to the first respondent husband. The husband's application to vary or discharge the spousal maintenance order was dismissed, with the court finding he had the capacity to meet his obligations. The husband was ordered to pay the wife $780,000 by way of property adjustment and to discharge all arrears of spousal maintenance within 45 days. Until these obligations were met, the husband was to hold his interest in the Suburb C property on trust for the wife and was restrained from dealing with it without her consent. Upon full compliance, the interim spousal maintenance order would be discharged, and various property transfers and releases would occur. The husband was also ordered to indemnify the wife against liabilities owed to his sister and certain entities, while the wife was to indemnify the husband against liabilities owed to her family and financial institutions.
Orders
Orders of the court
Property Adjustment and Spousal Maintenance
1.
That the First Respondent husband’s application to discharge, suspend or vary the interim spousal maintenance order of 5 June 2015, is dismissed.
2.
That within forty-five (45) days of the date hereof, the First Respondent husband shall pay to the Applicant wife:
(a) The sum of $780,000 by way of property adjustment; and
(b) Such sum as will discharge all arrears of periodic spousal maintenance owed pursuant to the interim Order of 5 June 2015.
3.
That until compliance by the First Respondent husband with the obligations imposed upon him by paragraph (2) hereof, he shall hold all of his right, title and interest in the real property situated at B Street, Suburb C, in the State of Queensland more particularly described as Lot … on RP … Title Reference number … (“the Suburb C property”), on trust for the Applicant wife and he is restrained from disposing of, or encumbering any of his interest in that property without the prior written consent of the Applicant wife.
4.
That, other than pursuant to earlier written agreement between the First Respondent husband and the Applicant wife, upon payment in full of both amounts as required pursuant to paragraph (2) hereof (and any interest accrued pursuant to the Family Law Act 1975 (Cth) and the Family Law Rules 2004 (Cth) on any amount of the sum of $780,000 not paid within the said forty-five (45) days):
(a) The interim periodic spousal maintenance order of 5 June 2015 shall be discharged;
(b) Any caveat or caveats registered by the wife over any of the husband’s interests in real property shall be immediately and simultaneously released;
(c) The wife shall immediately and simultaneously deliver a transfer of all of her right, title and interest in the real property situated at 5 WW Street, Suburb F in the State of Queensland being all of land described as Lot … on RP … County Ward Parish Suburb F Title Reference number … (“the Suburb F property”);
(d) Any mortgage held by the Applicant wife’s solicitors, Simonidis Steel Lawyers, in respect of the Applicant wife’s interest in the Suburb F property shall be immediately and simultaneously released;
(e) The trust created by paragraph (3) of these Orders is immediately and simultaneously discharged; and
(f) All previous injunctive Orders of the Court directed at and binding the First and Second Respondents shall be discharged.
5.
That in discharging the obligations imposed upon him by paragraph (2) of these Orders, the First Respondent husband shall, in the first instance, pay the Interveners, P Lawyers, such sum as will discharge the Applicant wife’s liability to that firm as at the date of payment and payment to that firm shall be considered as partial discharge of his obligation to pay the Applicant wife pursuant to paragraph (2) to the extent of the sum paid to the Interveners, and the balance of the First Respondent’s obligation shall be discharged by payment of the balance owing to the trust account of the Applicant wife’s solicitors, Simonidis Steel Lawyers.
6.
That should the First Respondent husband not comply with the obligations imposed upon him by paragraph (2) hereof, the Applicant Wife, and the First and Second Respondents shall all be at liberty to apply to relist the matter before his Honour Justice Forrest on the giving of written notice to the other parties for the making of enforcement Orders, if necessary, in respect of the sale of the Suburb F property and the First Respondent’s interest in the Suburb C property.
7.
That the First Respondent husband shall retain as his own all his right, title and interest in his superannuation interest in Super 1, the motor car in his possession, all personal property in his possession, the money in his bank accounts, his interest in the business, Z Pty Ltd, and his shares in the companies, H Pty Ltd, Y Pty Ltd and N Pty Ltd.
8.
That the Applicant wife shall retain as her own all her right, title and interest in all personal property in her possession and the money in her bank accounts.
9.
That the First Respondent husband shall indemnify the Applicant wife and keep her indemnified against any and all liability asserted to be owing by him and/or the Applicant wife to the First Respondent’s sister, the Second Respondent, to N Pty Ltd, to H Pty Ltd as trustee for the Conrad Family Trust, to Mr QQ, to Ms SS, to the Australian Tax Office and also in respect of any debts the First Respondent husband owes to any banks or other financial institutions for credit cards or any other loan facility he may have taken out.
10.
That the Applicant wife shall indemnify the First Respondent husband and keep him indemnified against any and all liability asserted to be owing by her to any member of her own family, to any banks or other financial institutions for credit cards or any other loan facility she may have taken out, and to any current or former legal representatives.
11.
That should the Applicant wife seek any orders as to costs, an Application in a Case particularising the orders sought, and any affidavit of evidence relied on in support shall be filed and served on the other parties within fourteen (14) days of the date hereof.
12.
That should either the First or Second Respondent oppose any costs application brought by the Applicant wife, or seek any orders as to costs of their own, then a Response to an Application in a Case particularising the orders sought, and any affidavit of evidence relied on in support shall be filed and served on the other parties within twenty-eight (28) days hereof.
13.
That written submissions, if any, in respect of any costs application made by either party be filed and served within forty-two (42) days hereof and if any of the parties want to be heard, orally, in respect of any costs application, a request for the matter to be listed for hearing of oral submissions shall be made in writing to the Court within forty-nine (49) of the date hereof.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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