Cross & Cross and Ors

FAMILY COURT OF AUSTRALIA

CROSS & CROSS AND ORS

[2007] FamCA 1097

FAMILY LAW – PROPERTY SETTLEMENT – Final property consent orders s 79(2)

FAMILY LAW – CHILD SUPPORT – Consent agreement

Family Law Act 1975 (Cth)

APPLICANT:

Mr Cross

RESPONDENT:

Mrs Cross

INTERVENOR:

Mr & Mrs Cross Snr

FILE NUMBER:

MLF

1136

2006

DATE DELIVERED:

12 September 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Young J

HEARING DATE:

12 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bartfeld QC with Ms Johns of Counsel

SOLICITOR FOR THE APPLICANT:

Kennedy Wisewoulds

COUNSEL FOR THE RESPONDENT:

Mr North SC with Mr Sweeney of Counsel

SOLICITOR FOR THE RESPONDENT:

Glezer Lanteri & Associates PTY LTD

COUNSEL FOR THE INTERVENOR:

Mr Komesaroff, Solicitor

SOLICITOR FOR THE INTERVENOR:

David Komesaroff

ORDERS

THAT the following orders be and are hereby discharged:
1.1Paragraph 4 of the orders dated 26 April, 2006;
1.2Paragraphs 5, 6, 7, 9, 10, 11, 12 of the orders dated 13 June, 2006;
1.3Paragraphs 7 and 10 of the orders dated 15 March, 2007.
THAT the husband’s parents, Mr and Mrs Cross Snr (“the Husband’s Parents”) be joined as parties to these proceedings.
THAT the husband pay or cause to be paid to the wife the sum of $5,750,000 (“the Payment”) as follows:-
3.1the sum of $500,000 on or before 18 October, 2007;
3.2the sum of $5,250,000 (“the Final Payment”) on or before 5 February, 2008 (“the Date”) save in the event that the husband proposes to make the Final Payment prior to the Date, he give fourteen (14) days notice in writing of his intention and the wife not be required to vacate the property situate at and known as the T property between 24 December 2007 and 30 January 2008.
THAT prior to the Final Payment the wife upon being given seven (7) days notice permit any valuer appointed by the husband or any lender engaged on his behalf to inspect the T property for the purpose of securing finance for the purpose of the husband meeting his obligations under these orders.
THAT contemporaneously with the Final Payment the wife do all such acts and things and sign all such documents as may be required to:
5.1assign and transfer to the husband or his nominee at his expense her right title and interest in the T property;
5.2resign as a director of:-
5.2.1D Pty Ltd (“D”);
5.2.2K Pty Ltd (“K”);
5.2.3   K Pty Ltd atf Cross Family Trust No. 2;
5.2.4   D Pty Ltd atf Cross Family Trust;
5.2.5   N Pty Ltd atf Cross Property Trust;
5.2.6   R Pty Ltd;
5.2.7   B Development Corp Pty Ltd;
5.2.8   N Pty Ltd;
5.2.9   W Pty Ltd;
5.2.10 Z Cross & Co Pty Ltd;
5.2.11 L Development Co. Pty Ltd;
5.2.12M Constructions Pty Ltd
5.2.13Any other company referred to in the reports of accountants, Mr P and/or Mr F filed in proceedings No. … in which the husband has an interest
(“the Z Cross Group of companies”).
5.3relinquish any interest she may have in:
5.3.1   Cross DG Trust;
5.3.2   Cross RG Trust;
5.3.3   JC Finance Trust.
5.4transfer to the husband or his nominee at his expense any shares held by her in D Pty Ltd, K Pty Ltd and any other company in the Z Cross Group of companies of which she is a shareholder;
5.5assign to the husband or his nominee any beneficial entitlements she has or may have standing to her credit in:-
5.5.1the Cross Family Trust;
5.5.2the Cross Family Trust No. 2;
5.5.3any other trust referred to in the reports accountants, Mr P and/or Mr F filed in proceedings No. … in which the husband is otherwise associated
(“the Trusts”).
5.6assign to the husband or his nominee if and when called upon to do so her right title and interest in any credit loan account in the Trusts;
5.7vacate the T property, and upon the giving of such vacant possession, the chattels situate at the T property (including those identified in the report of Mr J annexed to his affidavit filed 29 June, 2007) to remain at the T property, ownership of those chattels to be transferred to the husband or his nominee, save for the chattels listed in Annexure “A” hereto which chattels are to remain the property of the wife;
5.8all documents and transfers referred to herein are to be prepared by the husband.
THAT the husband indemnify the wife and keep her indemnified against any liability of whatsoever nature and kind arising as a result of her being an officeholder or member of the Z Cross Group of companies as a partner personally or through one of the Z Cross Group of companies or as a beneficiary of any of the Trusts referred to in paragraph 5.5 hereof.
THAT the husband indemnify the wife if and when called upon to do so against any claim, demand or liability to any person whatsoever arising from any liability to the Trusts under any debit loan account.
THAT to better secure the husband’s obligations pursuant to order 3 hereof and for so long as any part of the Payment remains outstanding and in the event that the T property is to be sold to meet the husband’s obligations to make the Payment to the wife, the Husband’s parents shall, in the event of such sale, permit the proceeds of such sale to be applied to so much of the Payment as is then outstanding together with interest thereon calculated in accordance with the rate proscribed by the Family Law Rules and such part of the proceeds of sale as needs to be applied as aforesaid shall rank ahead of any right or entitlement of the Husband’s Parents under the terms contract of sale, being the sum of approximately $1.3 million.
THAT without affecting in any way the rights of the wife to seek other remedies in the event of default, in the event that either payment pursuant to paragraph 3 of these orders is not paid on the dates specified therein, the wife may do all such acts and things as may be required to effect a sale of the T property (“the Sale”) and the proceeds of the Sale be applied as follows:-
9.1first, to pay the costs and commissions of and incidental to the Sale;
9.2secondly, to pay so much of the Payment as is then outstanding to the wife together with interest thereon calculated in accordance with the rate proscribed by the Family Law Rules;
9.3thirdly to pay the loan outstanding to the husband’s parents in the sum of approximately $1.3 million;
9.4fourthly, the balance then remaining to the husband.
THAT the husband indemnify the wife in respect of any debt or liability owed by them or either of them to his parents or entities in which they have an interest.
THAT the wife retain for her own use and benefit absolutely:-
11.1payments made to her pursuant to previous Court order, being the sum of $180,000;
11.2the Volvo XC90 motor vehicle, valued at $70,000;
11.3her entitlements in the Perpetual Select superannuation fund, valued at approximately $45,215;
11.4the chattels listed in Annexure “A” hereto.
THAT upon the husband’s compliance with order 3 hereof the husband retain for his own use and benefit absolutely:-
12.1the T property;
12.2his interest in the Z Cross Group of companies;
12.3… Rolls Royce motor vehicle;
12.4Mercedes Benz …;
12.5chattels and artwork in his possession as at the date of these orders;
12.6the chattels at the T property, save as provided in Annexure “A” hereto;
12.7the painting “Catherine” by …;
12.8A & A Superannuation Fund;
12.9The JC Superannuation Fund.
THAT the wife retain all artwork at the T property (“the T property art”), save for the artwork “Catherine” by … which is to be retained by the husband.
THAT in the event that the wife elects to sell any piece of the T property art she provide to the husband not less than fourteen (14) days notice in writing of her intention to sell, the husband to be provided the first option to purchase the said art from the wife, and in the event that the parties are unable to agree as to sale price, such art be sold by public auction at JL Auctioneers or such other auction house as may be agreed between the parties.
THAT in the event that the husband elects to sell any piece of art retained by him pursuant to these orders he provide to the wife not less than fourteen (14) days notice in writing of his intention to sell, the wife to be provided the first option to purchase the said art from the husband, and in the event that the parties are unable to agree as to sale price, such art be sold by public auction at JL Auctioneers or such other auction house as may be agreed between the parties.
THAT these orders are binding on the trustees of:
16.1 the A & A Superannuation Fund (“the A & A Fund”);
16.2 the JC Superannuation Fund (“the JC Fund”)
(“the Trustees”).
THAT whenever each of the Trustees of the A & A Fund and the JC Fund makes a splittable payment from the interest held by the husband, in the said superannuation funds the Trustees shall pay to the husband an amount equal to 100 per centum (100%) of the interest of the wife in the said superannuation funds and there be a corresponding reduction in the entitlement the wife would have had but for these orders.
THAT order 17 has effect from the operative time.
THAT the operative time for the purpose of these orders is four (4) days after the making of these orders.
THAT unless otherwise specified and save for the purposes of enforcing any monies due under these or any subsequent orders:
20.1each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders, the chattels in the T property being in the possession of the husband.
20.2each party be solely liable for and indemnify the other against any liability encumbering any item of property to which the other party is entitled pursuant to these orders;
20.3any joint tenancy of the parties in any real or personal estate be and is hereby expressly severed.
THAT in the event that the husband or the wife shall neglect or refuse to sign a document or instrument or do any act or thing required to give effect to these orders the Registrar of this court is appointed pursuant to section 106A of the Family Law Act to sign that document or instrument or do that act or thing in the name of the defaulting party.

CHILD SUPPORT

UPON THE COURT being satisfied pursuant to section 116(1)(b) of the Child Support (Assessment) Act that it is in the interests of the parties and the children that child support be determined in connection with the property proceedings.

THAT there be a departure order pursuant to section 117 of the Child Support (Assessment) Act for the children of the marriage, namely the child X born in April, 1991, the child Y born in September, 1993 and the child V born in July, 1997 the husband pay or cause to be paid to the wife for the period from 13 September, 2007 the sum of $18,000 per annum per child (being a total monthly payment of $1,500 per child).
THAT the payment referred to in order 22 hereof be adjusted each year on 13 September, commencing 13 September, 2008 in accordance with the movements in the Consumer Price Index applicable to Melbourne.
THAT pursuant to section 124 of the Child Support (Assessment) Act 1989 the husband provide child support to the wife for the said children by way of school fees, books and uniform expenses, music lessons and reasonable excursion expenses for the children.
THAT the payments referred to in orders 22 and 24 hereof count for 100% of any amount of child support which may be assessed against the husband.
THAT all documents produced to the Court on subpoena be returned to the person or entity to whom such subpoena was addressed.
THAT all extant applications be otherwise dismissed and removed from the Pending Cases List.
THAT there be no orders as to costs.

IT IS CERTIFIED

29,THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel including Senior Counsel for each of the husband and wife.

AND THE COURT NOTES

ATHAT pursuant to Section 81 of the Family Law Act 1975 (Cth) the parties intend, as far as practicable, these orders to end the financial relationship between them and avoid further proceedings between them.
BTHAT the parties agree that they intend to maintain the children’s enrolments at their current schools, being HB College in the case of the child X and SH College in the case of the children Y and V.
CTHAT the trustees of the Superannuation Funds referred to in order 16 hereof have been accorded procedural fairness.

ANNEXURE “A”
CHATTELS TO BE RETAINED BY THE WIFE:
1.CD’s and stereo
2.Timber fruit bowl;
3.All furniture in the kitchen at the T property including:-
a.crockery and cutlery;
b.moveable appliances;
c.antique kitchen table

but excluding the following items to be retained by the husband:-
I.4 bar stools;
II.Dresser base.

4.All furniture in entrance hall, save for:-
a.piano and piano stool;
b.antique cabinet and contents;
c.candle sticks;
d.wall sconces

which items are to be retained by the husband.
5.2 Teddy Bear paintings.
6.The artwork situate at the T property, save for the artwork “Catherine” by … which painting is to be retained by the husband;
7.Beds, clothing and personal effects from the children’s room;
8.Washing machine ironing board from the laundry;
9.Personal effects from the children’s playroom, computer, television, x-box, books (excluding the husband’s art and reference and architectural books);
10.Personal effects and clothing of the wife;
11.Outdoor timber setting, patio heaters and umbrella;
12.Personal effects of the wife and the children in the garage.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1136 of 2006

MR CROSS

Applicant

And

MRS CROSS

Respondent

And

MR & MRS CROSS SNR

Intervenors

REASONS FOR JUDGMENT

The matter of Cross & Cross and Others is before me and minutes of final property and financial orders, and orders dealing with child support have been presented to the court. I have earlier acknowledged the appearances of senior and junior counsel for both parties in the extempore interim judgments delivered. On this occasion, Mr Komasaroff, solicitor, seeks leave to appear for the husband's parents, Mr and Mrs Cross Snr. That leave is granted. Each of those individuals seek to be joined in these proceedings and the orders in paragraphs 8 and 9 impact upon them. I am satisfied to accept the assurances of their family solicitor that they have had read to them the particular paragraphs of these orders that I am now asked to pronounce. Whilst the parents are not at court I am wholly satisfied that they have reliably had read and informed to them the orders and have had advice insofar as they may impact financially upon them.
Otherwise, these orders conclude a final property settlement as between the husband and wife. I am particularly aware of the financial circumstances of the parties as was in evidence in their trial affidavits and other documents which I have read as the matter has been before me for several days on interim issues. A level of commonsense, no doubt based upon expert and competent advice, has enabled the parties to conclude a final agreement.
The effect of the orders is relatively straightforward with the wife taking a cash sum on a slightly deferred payment basis and with appropriate interest in default together with other orders in respect of significant artwork, chattels, retention of moneys, superannuation and otherwise as specified within the orders. I do not purport to set out the entirety of the assets which she will receive or retain. In broad brush, the husband otherwise acquires for valuable consideration the substantial home and other real property allotment at the T property and all of the corporate assets and entitlements subject to appropriate indemnities.
The obligation of the court is to determine that the property settlement is just and equitable under section 79(2) of the Act. The asset pool itself would have been the subject of much evidence and ultimately it is impossible for the court and likewise for the parties and all practitioners to know what would have been the final and agreed or otherwise determined asset pool. Generally I am assisted by senior counsel in indicating that the range of settlement is between 45 per cent and 50 per cent in favour of the wife, but most likely between 47 per cent and 50 per cent as I understand the refinement of submissions. The percentages may be a little misleading depending ultimately upon the concessions made in determining that pool of assets for out of court negotiations and I do not seek to have any further knowledge on that issue.
In a case such as this, and with a reasonably substantial pool of assets and a marriage of 18 years and three children and with all of the contributions and work and effort that I have read in the material, and all other matters and factors relevant to section 79(4) and section 75(2) of the Act, I am prepared to conclude that this settlement is just and equitable. In so doing it brings finality to the proceedings insofar as that is envisaged by the Act. There is an accompanying section 81 notation to these orders.
I will pronounce orders in terms of the minutes of orders, the effect of which will be then to discharge all extant applications and for the proceedings to be removed from the list of cases before the court.
I will have those brief reasons transcribed and placed upon the court file with copies being made available to all parties including the husband's parents.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Associate

Date: 19 September 2007

[2007] FamCA 1097

12 September 2007

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Consent

Remedies

Costs

Procedural Fairness

Statutory Construction