FAMILY COURT OF AUSTRALIA
| ERACKEN & ERACKEN (NO. 2) | [2019] FamCA 942 |
| FAMILY LAW – PROPERTY – application to set aside Consent Orders – where the Husband seeks a review of the Consent Orders made by the Registrar – where such a review would require an extension of time to be granted – where the Husband seeks, in the alternative, that the Consent Orders be set aside pursuant to s 79A of the Family Law Act 1975 (Cth) – where the Husband’s applications centre on allegations of fraud perpetrated by the parties – where an extension of time should be granted for the review of the Registrar’s decision – where the application would have been set aside pursuant to s 79A of the Family Law Act 1975 (Cth) – where it is just and equitable to alter the property interests of the parties – referral to the DPP (Cth) |
| Family Law Act 1975 (Cth) ss 74, 75, 79, 79A Family Law Rules 2004 (Cth) rr 1.1.4, 18.08 |
| Badawi & Badawi (2017) FLC 93-784 Bevan v Bevan (2013) 49 FamLR 387 Gallo v Dawson (1990) 93 ALR 479 Greetham & Greetham [2010] FamCA 246 Harris v Caladine (1991) FLC 92-217 In the Marriage of Gilbert v Estate of Gilbert (decd) (1990) FLC 92-125 McDonald v McDonald (1965) 113 CLR 529 Meyers v Casey [1913] 17 CLR 90 Pearson v Coli (2018) FamCA 295 Stanford v Stanford (2012) 247 CLR 108 Steinbrenner v Steinbrenner [2008] FamCAFC 193 |
| APPLICANT: | Mr Eracken |
| RESPONDENT: | Ms Eracken |
| FILE NUMBER: | MLC | 10141 | of | 2016 |
| DATE DELIVERED: | 6 December 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 4 - 7 December 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Williams |
| SOLICITOR FOR THE APPLICANT: | Carew Counsel Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Sweeney |
| SOLICITOR FOR THE RESPONDENT: | Clancy and Triado |
Orders
That pursuant to rule 1.14 of the Family Law Rules 2004, an extension of the time fixed pursuant to rule 18.08, for the filing of a review of the Final property orders of Registrar Riddiford made 26 October 2016 is granted, extending the time to the trial of this matter on 4 December 2018.
That pursuant to rule 18.08 of the Family Law Rules 2004, there be a review of the Final property orders made by Registrar Riddiford on 26 October 2016.
That the requirement for a review to be brought by an Application in a Case pursuant to rule 18.08 of the Family Law Rules 2004 is dispensed with.
That within 7 days of the making of these Orders, the funds held in trust by Clancy and Triado solicitors on behalf of both parties be paid in the following manner and priority:
(a)In payment of $413,000 in respect of outstanding amounts owed by the Husband to U Bank pursuant to the Deed of Settlement dated 16 November 2016;
(b) The balance to the Wife.
Other than in respect of Order 4(a) above the Husband shall be solely liable for…
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- AGLC
- Eracken and Eracken (No. 2) [2019] FamCA 942
- Case
- [2019] FamCA 942
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant an extension of time for the filing of a review of the final property orders, and if so, to conduct that review. Additionally, the court had to consider the appropriate distribution of funds held in trust by solicitors, the allocation of liabilities related to specific companies and trusts, and the provision of spousal maintenance.
Gill J granted the extension of time and dispensed with the requirement for the review to be brought by a formal Application in a Case, allowing the review to proceed to trial. The court ordered that funds held in trust be paid first to satisfy the husband's outstanding debt to U Bank, with the balance to be paid to the wife. The husband was made solely liable for and indemnified the wife against all outstanding amounts owed to U Bank, as well as any past, present, and future debts or liabilities associated with B Pty Limited and associated entities, and D Pty Limited ATF Eracken Family Trust No. 2 Pty Limited and other associated entities. The husband retained all interest in these entities, and the wife was ordered to assign any loan accounts to the husband and renounce any interest in these entities at the husband's expense. Each party was otherwise entitled to their own property, and the husband was ordered to pay the wife $500 per week for spousal maintenance until 9 February 2020. Finally, the court requested that the judgment and associated documents be forwarded to the Director of Public Prosecutions for consideration.
Orders
Orders of the court
1.
That pursuant to rule 1.14 of the Family Law Rules 2004, an extension of the time fixed pursuant to rule 18.08, for the filing of a review of the Final property orders of Registrar Riddiford made 26 October 2016 is granted, extending the time to the trial of this matter on 4 December 2018.
2.
That pursuant to rule 18.08 of the Family Law Rules 2004, there be a review of the Final property orders made by Registrar Riddiford on 26 October 2016.
3.
That the requirement for a review to be brought by an Application in a Case pursuant to rule 18.08 of the Family Law Rules 2004 is dispensed with.
4.
That within 7 days of the making of these Orders, the funds held in trust by Clancy and Triado solicitors on behalf of both parties be paid in the following manner and priority:
(a) In payment of $413,000 in respect of outstanding amounts owed by the Husband to U Bank pursuant to the Deed of Settlement dated 16 November 2016;
(b) The balance to the Wife.
5.
Other than in respect of Order 4(a) above the Husband shall be solely liable for and shall indemnify the Wife and hold her harmless in respect of outstanding amounts owed by the Husband to U Bank pursuant to the Deed of Settlement dated 16 November 2016
6.
That the Husband retain all of his right title and interest in B Pty Limited (“the company”) and any associated entities.
7.
The Husband shall be solely liable for and shall indemnify the Wife and hold her harmless against any and all manner of past, present and future debts, actions, suits, causes of action, arbitrations, dues, costs, interest and demands whatsoever both at law and in equity in relation to the company and/or which the company now has or may have at any time hereafter against the Wife whether by reason of the Wife having been an employee of the company and/or pursuant to any guarantee given by the Wife in respect of any obligation of the company to any person or entity.
8.
The Husband retain sole use and control of D Pty Limited ATF Eracken Family Trust No. 2 Pty Limited and any other associated entities and trusts (“the entities”) and any and all income, investments, assets and tax credits (if any) therefrom, for his sole use and benefit (or at his discretion) absolutely.
9.
That the Wife forthwith at the expense of the Husband do all acts and things and sign or cause to be signed any necessary documents to:
(a) Assign to the Husband any loan account standing to her credit and provide a full release and discharge from and against any claim, right, entitlement or interest in any such loan account in the entities; and
(b) Renounce and forego any power, right, interest or entitlement (legal and beneficial) in or to the entities and sign all documents required (at the Husband’s expense) to give effect to this clause, including but not limited to Resignation as Director and Transfer of shares forms.
10.
The Husband shall be solely liable for and shall indemnify the Wife and hold her harmless against any and all manner of past, present and future debts, actions, suits, causes of action, arbitrations, dues, costs, interest and demands whatsoever both at law and in equity in relation to the entities and/or which the entities now have or may have at any time hereafter against the Wife whether by reason of the Wife having been an employee of the entities and/or pursuant to any guarantee given by the Wife in respect of any obligation of the entities to any person or entity.
11.
Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a) Each 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.
(b) Each party forego any claims they may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to or earned by the other.
(c) Insurance policies remain the sole property of the names owner.
(d) Each party be liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(e) Any joint tenancy of the parties in any real or person property is hereby expressly severed.
12.
The Husband pay to the Wife for the maintenance of the Wife the sum of $500 per week until 9 February 2020 with such amount to be paid to an account nominated by the Wife and be paid each Monday.
13.
It is requested that the Marshall of the Family Court of Australia forward to the Director of Public Prosecutions (Cth) for consideration:
(a) This judgment;
(b) Copies of:
(i) The documents associated with the application for consent orders made 26 October 2016;
(ii) The parties trial documents; and
(iii) The transcript of the trial proceedings.
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
Established by: CJ J
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