FAMILY COURT OF AUSTRALIA
| CURTAIN & CURTAIN | [2016] FamCA 577 |
| FAMILY LAW – PROPERTY – final orders – where the wife seeks orders for property settlement – where the orders are opposed by the husband – where there are farming properties –where each party seeks to retain various properties including farming properties – where the was a settlement agreement – where consideration is given to contributions of the parties – where consideration is given to s 75(2) factors – where an order is made for the wife to receive 45 per cent of the property of the parties and therefore the husband is required to pay a settlement sum. |
| Family Law Act 1975 (Cth) s 4, 75, 79, 106A |
| Bevan & Bevan (2013) FLC 93-545 |
| APPLICANT: | Ms Curtain |
| RESPONDENT: | Mr Curtain |
| FILE NUMBER: | ADC | 4409 | of | 2013 |
| DATE DELIVERED: | 15 July 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 4, 5, 6 & 7 April 2016 and 30 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Litigant in Person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Mr McQuade |
| SOLICITOR FOR THE RESPONDENT: | Howe Jenkin |
Orders
That by way of settlement of property or alteration of interest in property:-
(a)Within sixty (60) days of the date of this order the husband do pay direct to the wife the sum of
FIFTY FIVE THOUSANDSIX HUNDRED AND THIRTY FOUR DOLLARS($55,634)($634) (“the settlement sum”);(b)Contemporaneously with the payment by the husband to the wife of the said settlement sum, the wife shall:-
(i)Transfer to the husband all her estate and interest in the property situate at and known as B Street, C Town being the whole of the land comprised and described in Certificate of Title Volume … Folio … (“the C Town property”);
(ii)Resign as a director of D Pty Ltd ACN … and do transfer her shareholding in D Pty Ltd to the husband;
(iii)Do relinquish her appointment as a trustee of the Mr Curtain Family Trust, the Mr Curtain No 2 Family Trust and the E Family Trust and do transfer and assign to the husband all her estate and interest in any of the assets of the said trusts.
(c)Contemporaneously with the payment of the said settlement sum and the transfer of the wife’s interest in the C…
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- AGLC
- Curtain & Curtain [2016] FamCA 577
- Case
- [2016] FamCA 577
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate division of the parties' property interests. In doing so, it had to consider the contributions made by each party to the marriage and their respective assets, as well as the factors outlined in section 75(2) of the *Family Law Act 1975* (Cth). These factors relate to matters such as the age and health of the parties, their earning capacity, and the responsibilities of caring for children.
Berman J's reasoning led to an order that the wife receive 45 per cent of the parties' property. This was to be achieved through a series of specific transfers and payments. The husband was ordered to pay a settlement sum of $55,634 to the wife. Contemporaneously, the wife was to transfer her interest in the C Town property, resign as director and transfer her shares in D Pty Ltd, and relinquish her trustee appointments in several family trusts, transferring her interests in those trust assets to the husband. The husband was to transfer his interest in the Suburb G property to the wife, and indemnify the wife against liabilities of D Pty Ltd and the family trusts. The wife was to retain her interest in the H and I Family Trusts, and the partnership between the parties, MR & MS Curtain, was to be dissolved with assets transferred to the husband. The husband was to retain his interest in E Consulting Pty Ltd and indemnify the wife against liabilities of MR & MS Curtain and E Consulting. Further orders addressed the parties' superannuation, personal property, and liabilities to the husband's mother. In the event of default by the husband in paying the settlement sum or discharging the mortgage on the Suburb G property, specific provisions were made for the sale of other properties to satisfy these obligations.
Orders
Orders of the court
1.
That by way of settlement of property or alteration of interest in property:-
(a) Within sixty (60) days of the date of this order the husband do pay direct to the wife the sum of FIFTY FIVE THOUSAND SIX HUNDRED AND THIRTY FOUR DOLLARS ($55,634) ($634) (“the settlement sum”);
(b) Contemporaneously with the payment by the husband to the wife of the said settlement sum, the wife shall:-
(i) Transfer to the husband all her estate and interest in the property situate at and known as B Street, C Town being the whole of the land comprised and described in Certificate of Title Volume … Folio … (“the C Town property”);
(ii) Resign as a director of D Pty Ltd ACN … and do transfer her shareholding in D Pty Ltd to the husband;
(iii) Do relinquish her appointment as a trustee of the Mr Curtain Family Trust, the Mr Curtain No 2 Family Trust and the E Family Trust and do transfer and assign to the husband all her estate and interest in any of the assets of the said trusts.
(c) Contemporaneously with the payment of the said settlement sum and the transfer of the wife’s interest in the C Town property and her shareholding in D Pty Ltd, the husband do transfer to the wife all his estate and interest in the property situate at and known as F Street, Suburb G being the whole of the land comprised and described in Certificate of Title Volume … Folio … (“the Suburb G property”);
(d) The husband do indemnify the wife and keep her forever indemnified with respect to any liabilities of D Pty Ltd, Mr Curtain Family Trust, Mr Curtain No 2 Family Trust and E Family Trust and keep her forever indemnified with respect to any liabilities in respect of same PROVIDED THAT the wife shall relinquish or assign any credit loan account (if any) to the husband;
(e) The wife shall retain her interest in the H Family Trust and I Family Trust free of claim of the husband;
(f) The partnership between the husband and the wife styled MR & MS Curtain be dissolved as at 30 June 2016 and the wife do execute all such documents as are necessary to transfer the assets of the partnership to the husband at their tax or book values;
(g) The husband shall retain his interest in E Consulting Pty Ltd free from any claim by the wife;
(h) The husband indemnify the wife and keep her forever indemnified with respect to any liabilities of MR & MS Curtain and E Consulting;
(i) The husband and wife take all such steps as may be necessary to roll over the wife’s member account balance with the Curtain Superannuation Fund to such superannuation fund as the wife shall nominate and that forthwith thereafter the wife do resign as trustee of the Curtain Superannuation Fund;
(j) The wife do retain as her sole property her interest in the property at J Town and in the property previously occupied by the wife’s mother at L Town;
(k) The husband do all things necessary to discharge the ANZ residential loan secured over the Suburb G property to the effect that the property shall be transferred to the wife free and unencumbered by any liability, charge, guarantee or security;
(l) In respect of the parties interest in personalty, they shall retain as their sole and separate property their savings, shares, motor vehicles, superannuation entitlements, furniture and household effects, jewellery and all other items presently registered in their names or in their respective possession;
(m) The husband will indemnify the wife and keep her indemnified in respect of any liability outstanding to the husband’s mother;
(n) In default of the payment of the said settlement sum either in whole or in part or if the husband shall fail to discharge the mortgage liability secured over the Suburb G property and in circumstances where that default shall remain outstanding for a period greater than thirty (30) days THEN the parties shall do all things necessary to cause the C Town property and the properties known as “M” and “E” to be placed on the market for sale by private treaty or public auction upon such terms and conditions as the parties may agree but in default of agreement as may be ordered by this Honourable Court and that following the sale of the said property or properties and the payment out of the necessary costs of sale and the discharge of any secured mortgage, from the net balance remaining (if any) the wife shall receive the settlement sum or so much of the settlement sum as shall remain outstanding together with such sum as may be required to discharge any mortgage liability secured over the Suburb G property together with default interest at 10 per centum per annum and the husband shall be entitled to the balance remaining.
2.
That a Registrar of this Honourable Court shall have power pursuant to s 106A of the Family Law Act 1975 (Cth) to sign all such documents as may be required to give effect to these orders in circumstances where upon proof by affidavit a party has refused or neglected to sign such documents as may be presented to him or her and that such refusal or neglect has continued for a period longer than seven (7) days after the said documents were presented.
3.
All matters be removed from the pending list of cases.
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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