FAMILY COURT OF AUSTRALIA
| CRYALL & PETERMAN | [2010] FamCA 831 |
| FAMILY LAW – PROPERTY – Settlement in relation to marriage – significantly higher earning capacity of husband – significant post-separation contributions by husband, who has the ongoing care of the three children of the marriage – wife unable to adequately maintain herself by reason of lack of training – retraining of the wife required to gain financial independence – husband to provide maintenance for a limited period whilst the wife undertakes such retraining |
| Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Cryall |
| RESPONDENT: | Mr Peterman |
| FILE NUMBER: | SYC | 5885 | of | 2007 |
| DATE DELIVERED: | 17 September 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Fowler |
| HEARING DATE: | 2-3 August 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Shaw |
| COUNSEL FOR THE RESPONDENT: | Mr North, SC |
NOTATIONS
The Court notes the following definitions:
Assets
A.“CC Corp” means CC Corp Pty Limited ACN … of which there are 20 ordinary shares, 10 of which are beneficially held by the husband and 10 of which are beneficially held by the wife and of which the husband and the wife are both directors and the wife is the secretary and which is the Trustee of the M Unit Trust and the Peterman Family Superannuation Fund.
B.“D Nominees Pty Limited” means the husband’s investment in AA Pty Limited ACN … held via D Nominees Pty Limited ACN ….
C.“husband’s bank accounts” means any accounts in the husband’s name with any bank, credit union, building society or financial institution.
D.“husband’s car” means the 2006 Alfa 159 motor vehicle registration number … registered in the husband’s sole name.
E.“husband’s interest in GG Firm” means the husband’s interest arising from his being a partner in the professional firm known as GG Firm and its associated entities.
F.“husband’s personal effects” means all personal effects in the husband’s possession and/or control including but not limited to watches.
G.“husband’s Peterman Superannuation” means the husband’s member entitlement in the Peterman Family Superannuation Fund and any other fund or policy.
H.“husband’s shares” means any shares the husband has in any publicly listed company.
“IAG shares” means the 224 shares in IAG Limited owned jointly by the parties.
J.“joint bank accounts” means any accounts with any bank, credit union, building society or financial institution in the joint names of the parties.
K.“Peterman Family Superannuation Fund” means the Peterman Family Superannuation Fund established by Deed dated … February 2002 with CC Corp as the Trustee.
L.“T Stret property” means the property situate at and known as T Street in the State of New South Wales, being the whole of the land comprised in Folio Identifier … together with the improvements, fixtures and fittings erected thereon or attached thereto and registered in the sole name of the wife.
M.“N Street property” means the property situate at and known as N Street in the State of New South Wales, being the whole of the land comprised in Folio Identifier … and ……
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- Case
- [2010] FamCA 831
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the specific orders necessary to finalise the property settlement. This included the transfer of property interests, the payment of a lump sum to the wife, the discharge of liabilities, the allocation of specific assets and debts, and the provision of spousal maintenance. The court also needed to address the future conduct of the parties in relation to company directorships and shareholdings, and to ensure that the orders would, as far as possible, bring an end to their financial relationship and avoid further litigation.
Justice Fowler made detailed orders to achieve a final property settlement. The wife was to transfer her interest in the T Street property to the husband, subject to encumbrances, and provide vacant possession, taking specified items listed in Schedule A. The husband was to pay the wife a sum of $919,296 upon compliance with these conditions. In the alternative, if the husband failed to make this payment, the wife was to sell the T Street property, with the proceeds to be applied first to discharge the mortgage, then agent's commission and conveyancing costs, followed by the payment of $919,296 to the wife, with any balance to the husband. The orders also stipulated the transfer of various other assets and liabilities between the parties, including shares, superannuation, and company interests, and provided for mutual indemnities regarding specific debts. The husband was ordered to pay the wife $1,000 per week for 104 weeks by way of spousal maintenance, commencing from a specified date. The court also included provisions for the Registrar to execute documents if a party defaulted, and expressed the intention that these orders would finally resolve the parties' financial arrangements.
Orders
Orders of the court
1.
The interim spouse maintenance Orders made by this Honourable Court on
19 March 2008 are discharged from the date to which they stand paid.
2.
Within 28 days of the making of these Orders:
(a) the wife do all acts and things and sign all documents necessary so as to transfer her right, title and interest in the T Street property to the husband, subject to all encumbrances
(b) the wife shall provide vacant possession of the T Street property taking with her the items on Schedule “A”
(c) the husband shall upon compliance with Order 5 herein and upon transfer of the T Street property to the husband pay or cause to be paid to the wife or as she may direct the sum of $919,296.
(d)
in the event that the husband does not tender the sum referred to in Order 2(c) hereof within the time hereby limited or such further period as may be agreed by the parties or allowed by the Court the wife is to do all acts and things and sign all documents necessary to effect a sale of the T Street property, such sale to be effected in the first instance by private treaty at a listing price of not less than $2,700,000 and that for the purpose of the sale, the wife appoint as exclusive selling agent,
L Estate Agents and that upon completion of the sale of the T Street property the proceeds be applied in payment:
(i) to the National Australia Bank of the amounts presently secured by way of mortgage on the T Street property and other fees of and incidental to procuring the discharge of the loans on the mortgage secured on the T Street property
(ii) of agent’s commission which will be charged at a rate of not more than half a percent (0.5%) of the sale price (excluding GST)
(iii) of conveyancing costs and disbursements of and incidental to the sale and
(iv) of the sum of $919,296 to the wife and
(v) of the balance (if any) to the husband.
(e) the husband and wife do all acts and things and sign all documents necessary to procure from the National Australia Bank a release in favour of the wife from all liabilities in respect to the T Street mortgage A and the T Street mortgage B and to enable the husband to re-draw under T Street mortgage B to pay the sum in Order 2(c)
(f) the husband and wife do all acts and things and sign all documents necessary to close all joint bank accounts and transfer the balance of such accounts to such accounts as the husband directs and if there is a negative balance in any such account the parties equally pay to the bank one-half of such shortfall
(g) the husband and wife do all acts and things and sign all documents necessary to transfer the wife’s car to the wife and the wife is to indemnify the husband in relation to the wife’s car loan
(h) the husband and wife do all acts and things and sign all documents necessary so as to transfer to the wife the IAG shares
(i)
the husband and the wife do all acts and things and sign all documents necessary so as to transfer to the husband the wife’s units in the
M Unit Trust
(j)
on or before 28 days from the date of these orders the parties are to do all things and sign all documents necessary to roll over the wife’s Peterman Superannuation fund as at the date of these orders to such complying superannuation fund as the wife nominates within
14 days of the date of these orders.
3.
Upon compliance by the parties with their respective obligations under Order 2 the wife shall do all acts and things and sign all documents necessary to:
(a) resign all directorships, all positions and all offices in CC Corp but shall first if called upon to do so, vote at any meetings of members and directors thereof in favour of such resolutions as the husband may direct
(b) execute in favour of the husband a transfer of the whole of her right, title and interest in her shares in CC Corp
(c) assign all her right title and interest in any loan account with CC Corp to the husband.
4.
Except as any of Orders 3(a) to 3(c) inclusive provide to the contrary, the husband shall indemnify and keep indemnified the wife against any liabilities of any nature which the wife may have at any time arising in any way in respect of CC Corp, whether from her position in the company, her receipt of any money from the company or any liability of the company or otherwise.
5.
The wife shall be permitted to remain in occupation of the T Street property until the earlier of 28 days from the date of this Order or the date of transfer of the title of that property to the husband or in the event that it is sold the date of settlement of the sale provided that:
(a) she shall terminate with immediate effect any license to reside at the premises she has provided to any person including but not limited to any international students on home stays
(b) she shall keep the premises in a reasonable state of repair and in reasonable decorative order at her expense
(c) she shall reasonably maintain the T Street contents and
(d) the husband shall be permitted to inspect the premises and contents on a date and at a reasonable time to be notified to the wife in writing at not less than 24 hours’ notice prior to making the lump sum payment referred to in Order 2 and if the T Street property is not in a reasonable state of repair and/or is not in reasonable decorative order, or if any of the T Street contents to be retained by the husband are absent or are not in a reasonable condition then:
(i) the husband shall pay such reasonable sum as is agreed to be adequate to rectify the defect or defects noted on his inspection into a controlled monies account with Barkus Doolan Kelly Family Lawyers from the cash provision to the wife to be made pursuant to Order 2
(ii) if the husband and wife cannot agree on an appropriate allowance to reflect the alleged defects to be made good within 7 days of the husband’s inspection then the parties shall instruct Mr JA to assess the allowance properly payable to the husband in relation to the T Street contents, and/or K valuers in relation to the T Street property, such costs to be paid equally by the parties
(iii) forthwith upon the allowance being agreed or assessed, the husband shall instruct his solicitors to divide the funds in the controlled monies account as to himself, the allowance, to the expert or experts instructed pursuant to this clause, their fees, and to the wife, the balance, provided the wife has otherwise complied with her obligations pursuant to Order 2.
6.
The husband indemnify and keep the wife indemnified against all actions, claims and demands as may be made against her in relation to:
(a) the T Street mortgage A
(b) the T Street mortgage B
(c) the N Street mortgage
(d) NAB Flexi account
(e) the husband’s car loan
(f) the husband’s credit card liabilities
(g) the husband’s GG Firm liability
(h) the husband’s taxation liabilities
(i) all other liabilities in the husband’s name or for which he is responsible, excluding any liability incurred by the wife in the husband’s name without his express written authority.
7.
The wife indemnify and keep the husband indemnified against all actions, claims and demands as may be made against him in relation to:
(a) the wife’s credit card liabilities
(b) the wife’s taxation liabilities
(c) the wife’s legal fees
(d) the wife’s car loan
(e) all other liabilities in the wife’s name or for which she is responsible, excluding any liability incurred by the husband in the wife’s name without her express written authority.
8.
Except as is specifically provided for by these Orders to the contrary, the husband is the sole owner of and the wife has no interest in:
(a) the T Street contents except those items on Schedule “A”
(b) the N Street property
(c) the husband’s bank accounts
(d) the husband’s interest in D Nominees Pty Ltd
(e) the N Street contents
(f) the husband’s car
(g) the husband’s shares
(h) the husband’s personal effects
(i) the husband’s interest in GG Firm
(j) all other assets of whatsoever nature in the husband’s title possession and/or control.
9.
Except as is specifically provided for by these Orders to the contrary, the wife is the sole owner of and the husband has no interest in:
(a) the items on Schedule “A”
(b) the wife’s bank accounts
(c) the wife’s shares
(d) all other assets of whatsoever nature and kind in the wife’s possession and/or control.
10.
Each party shall do all acts and things and sign all documents necessary in compliance with these Orders and to put them into effect.
11.
The husband will pay to the wife weekly and every week the sum of $1,000 by way of maintenance and support for the wife the first of such payments to be made one week from the earlier of 28 days from the date of this Order or the transfer of the Title to the T Street property to the husband and thereafter weekly until the expiration of a period of 104 weeks from the date of the making of these orders.
12.
It is the intention of the Court that the making of these orders should so far as is possible end financial arrangements between the parties and avoid further proceedings of this nature between them.
13.
In the event that either party refuses or neglects to sign any documents, instruments or writings so as to give effect to these Orders within a period of fourteen (14) days from the date of being served with a copy of these Orders and any such document, instrument or writing the Registrar of this Honourable Court may pursuant to Section 106A of the Family Law Act 1975 (Cth) do all acts and things necessary to give validity and operation to the said document, instrument or writing so as to effect compliance with the Orders and the costs of obtaining due execution shall be borne by the party in default.
SCHEDULE “A”
*
Wife’s clothing and personal effects
*
Lounge suite of the wife’s choice located at the T Street property
*
Dining table and chairs located at the T Street property
*
Main bedroom suite located at the T Street property
*
The barbeque located at the T Street property
*
One plasma screen television located at the T Street property
*
The refrigerator located at the T Street property
*
The computer and monitor used in the kitchen of the T Street property
*
2 tallboys located at the T Street property
*
1 set of outdoor table and chairs
*
Table tennis table
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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