Gresham & Gresham (No 3)
[2023] FedCFamC1F 408
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gresham & Gresham (No 3) [2023] FedCFamC1F 408
File number(s): SYC 7914 of 2016 Judgment of: ALTOBELLI J Date of judgment: 19 May 2023 Catchwords: FAMILY LAW – PROPERTY – Where both parties filed an Application in a Proceeding to vary final orders – Where there was an error on the balance sheet – Where the amount that the wife is to pay the husband is increased – Amendment to orders pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) – Amendment to reasons for judgment pursuant to r 10.14 of the Rules. Legislation: Family Law Act 1975 (Cth) ss 79(2), 79A, 81
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 10.13, 10.14
Cases cited: Gresham & Gresham (No 2) [2023] FedCFamC1F 51 Division: Division 1 First Instance Number of paragraphs: 42 Date of hearing: 15 May 2023 Place: Sydney Solicitor for the Applicant: Watson & Watson Solicitors Solicitor for the Respondent: Litigant in person ORDERS
SYC 7914 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GRESHAM
Applicant
AND: MS GRESHAM
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
19 MAY 2023
THE COURT ORDERS THAT:
1.Pursuant to rr 10.13 and 10.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) and/or Slip Rule, and in accordance with Order 19 of the Court’s orders made on 10 February 2023 (“the Primary Orders”), the amount of “431,250” at Item 48 in the balance sheet at [128] of the Judgment dated 10 February 2023 (“the Judgment”), be varied by deleting “431,250” and be replaced with “NIL”.
2.Consequent upon the implementation of Order 1, or pursuant to r 10.13 of the Rules and/or Slip Rule:
(a)For items in the balance sheet at [128] of the Judgment:
(i)TOTAL UNDER LIABILITY: The amount of “2,522,834” be varied and replaced with “2,091,584”;
(ii)NET POOL (NOT INCLUDING FINANCIAL RESOURCES): The amount of “13,254,909.5” be varied and replaced with “13,686,159.50”;
(iii)NET POOL (INCLUDING FINANCIAL RESOURCES): The amount of “13,995,651.5” be varied and replaced with “14,426,901.5”;
(iv)NET NON-SUPERANNUATION/PENSION ASSETS: The amount of “9,047,093.50” be varied and replaced with “9,478,343.50”; and
(v)NET TOTAL ASSETS AND RESOURCES: The amount of “13,995,651.5” be varied and replaced with “14,426,901.5”.
(b)The amount of “$9,254,487.5” for Pool One at [132] of the Judgment be varied and replaced with “$9,685,737.5”;
(c)The amount of “$9,254,487.5” and the amount of “$2,799,130.3” at [144] of the Judgment be varied and replaced with “$9,685,737.5” and “$2,885,380.3” respectively;
(d)In the schedule at [146] of the Judgment:
(i)The amount of “431,250” allocated as a liability to the Respondent Wife (“the Wife”) at Item 48 be varied and replaced with “NIL”;
(ii)The amount of “2,447,080” allocated to the Wife “Total” for liabilities at page 47 of the Judgment and replaced with “2,015,830”;
(iii)The amount of “8,604,189.5” allocated to the Wife as to “Net Non-Superannuation Assets” be varied and replaced with “9,035,439.5”; and
(iv)The amount of “10,095,877.6” allocated to the Wife as to “Net Total Assets and Resources” be varied and replaced with “10,527,127.6”.
(e)At [147] of the Judgment:
(i)The amount of “$8,397,390.60” be varied and replaced with “$8,656,140.90”;
(ii)The amount of “$10,095,876” be varied and replaced with “$10,527,127.60”; and
(iii)The amount of “$1,698,487” be varied and replaced with “1,870,986.70”.
(f)The amount of “$1,698,487” in Order 1 and Order 5(c) of the Judgment be varied and replaced with “$1,870,986.70”.
3.Pursuant to Order 10 of the Judgment, BB Pension …80 be split between the Wife and the Applicant Husband (“the Husband”) based on valuation of the funds in Order 10(a), 10(b) and 10(c), and an exchange rate converting GBP to Australian Dollar as at the date of splitting. The exchange rate converting GBP to Australian Dollar is the exchange rate shown on the website of Reserve Bank of Australia at the date of splitting.
4.Pursuant to r 10.13 of the Rules and/or Slip Rule, and in accordance with Order 19 of the Primary Orders, and the agreement between the Wife and the Husband in relation to the G Street, City H United Kingdom property, that Order 12 of the Primary Orders be amended and replaced with:
12The Wife and the Husband do all acts and things and sign all documents necessary to release the remaining balance of the G Street, City H United Kingdom property sale proceeds from the AP Lawyers Trust Account to an account nominated by the Husband.
5.The Wife on completion of acquisition of the Suburb E property or completion of its sale, whichever first occurs, pay to the Husband in addition to the amounts required pursuant to Order 1 in the Primary Orders or Orders 5 and 7 in the Primary Orders the amount of $54,951.72.
6.The stay granted by Order 4 made 4 April 2023 is forthwith lifted and discharged.
7.All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gresham & Gresham has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
In the matter of Gresham & Gresham, I provide the following ex-tempore reasons. A number of interlocutory matters came before me on 15 May 2023. Firstly, there is the wife’s (“the wife”) Application in a Proceeding filed 3 April 2023. The orders sought included:
1.That leave be granted to the Applicant to seek Orders in the following terms:
'within 90 days of the date of the orders (10th February 2023) that the Applicant wife ('the wife') pay the Court to be held in trust account, the sum {Confirmed amount} which is minus the amount owed to [Mr AO] held by Caveat […15] and minus the amout owed to Wife's parents {$57,500 + $70,000} held by Caveat […08] in respect to consent orders of 18th February 2022 notion B and C and order 2.2'
2.Contemporaneous with the payment in compliance with Order 1:
(a) From the amount owing to the Respondent Husband, that the wife pay [Mr AO] of Watson and Watson the sum of {confirm the amount} held by Caveat […15]
(b) From the amount owing to the Respondent Husband, that the wife pay the wife's parents the sum of $70,000 and $57,500 held by Caveat […08].
(c) The Husband shall meet the Wife at the office of Watson and Watson, […] on {date depending on the number of days of the extension} and sign all documents necessary to transfer his interest in the property situated and known as [D Street, Suburb E] in the state on New South Wales (Folio Indentifer […]) ('the [Suburb E] Property’) to the wife.
(d) That on (confirm date) [Mr AO] of Watson and Watson Family Law Firm, shall provide the Applicant Wife, a Withdrawal of Caveat […15] in registerable form.
(e) In the event that either party refuses or neglects to sign all documents to give effect to the wife being declared the sole legal and benefical owner of the [Suburb E] property then they can be signed by the Registrar of the court within 48 hours.
3.If the matrimonial property sells below $10,800,000 the husband is to receive {an amount to be specified).
4.Commencing term 3, 2023 the school fees for [X], [Y] and [Z] be borne between the parties 15% to the Applicant wife, 'the wife' and 85% to the respondent husband, [Mr Gresham]. The the cost of extra ciricular subjects is to be paid as negotiated between the parties.
5.That the Respondent Husband, continues to pay or cause to paid all premiums of the current family health insurance with [R Insurance] at the current level of cover until [Z] finishes secondary school.
6.If [BB Pension] in [Country Q] does not agree to transfer the total amount equivalent to 30% across all 3 pension funds ([CC Pension] and the UK pension) then the difference is paid from the 25% lump sum cash that the Respondent husband can withdraw in the lead up to June 2023.
(As per the original)
Then there is the husband’s (“the husband”) Application in a Proceeding filed 5 May 2023. He sought the following orders:
1This Application be listed before his Honour Justice Altobelli.
2Pursuant to r10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and/or Slip Rule, and in accordance with Order 19 of the Court's Orders made on 10 February 2023 ("Primary Orders"), the amount of "431,250" at Item 48 in the balance sheet at paragraph 128 of the Judgment dated 10 February 2023 ("Judgment"), be varied by deleting "431,250" and be replaced with "NIL".
3Consequent upon the implementation of Order 2, or pursuant to r10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and/or Slip Rule:
a)For items in the balance sheet at paragraph 128 of the Judgment:
i.TOTAL UNDER LIABILITY: The amount of "2,522,834" be varied and replaced with "2,091,584";
ii.(ii) NET POOL (NOT INCLUDING FINANCIAL
iii.RESOURCES): The amount of "13,254,909.5" be varied and replaced with "13,686,159.50";
iv.(iii) NET POOL (INCLUDING FINANCIAL RESOURCES): The amount of "13,995,651.5" be varied and replaced with "14,426,901.5";
v.(iv) NET NON-SUPERANNUATION/PENSION ASSETS: The amount of "9,047,093.50" be varied and replaced with “9,478,343.50"; and (v) NET TOTAL ASSETS AND RESOURCES: The amount of "13,995,651.5" be varied and replaced with "14,426,901.5".
b)The amount of "$9,254,487.5" for Pool One at paragraph 132 of the Judgment be varied and replaced with "$9,685,737.5";
c)The amount of "$9,254,487.5" and the amount of "$2,799,130.3" at paragraph 144 of the Judgment be varied and replaced with "$9,685,737.5" and "$2,885,380.3" respectively;
d)In the schedule at paragraph 146 of the Judgment:
i.The amount of "431,250" allocated as a liability to the Wife at Item 48 be varied and replaced with "NIL";
ii.The amount of "2,447,080" allocated to the Wife "Total" for liabilities at page 47 of the Judgment and replaced with "2,015,830";
iii.The amount of "8,604,189.5" allocated to the Wife as to "Net Non-Superannuation Assets" be varied and replaced with "9,035,439.5"; and
iv.(The amount of "10,095,877.6" allocated to the Wife as to "Net Total Assets and Resources" be varied and replaced with "10,527,127.6".
e)At paragraph 147 of the Judgment:
i.The amount of "$8,397,390.60" be varied and replaced with "$8,656,140.90";
ii.The amount of "$10,095,876" be varied and replaced with "$10,527,127.60"; and
iii.The amount of "$1,698,487" be varied and replaced with "1,870,986.70".
f)The amount of "$1,698,487" in Order 1 and Order 5(c) of the Judgment be varied and replaced with "$1,870,986.70.
4Pursuant to Order 10 of the Judgment, [BB Pension …80] to be split between the Wife and the Husband based on valuation of the funds in Order 1 0(a), 10(b) and 1 O(c), and an exchange rate converting GBP to Australian Dollar as at the date of splitting . The exchange rate converting GBP to Australian Dollar is the exchange rate shown on the website of Reserve Bank of Australia at the date of splitting.
5Consequent upon the implementation of Order 4:
a)The amount of [BB Pension …80]; [CC Pension …5] and [VPLC] UK Pension be varied and replaced with the valuation in accordance with Order 4 above; and
b)Any other amount affected by the amount at paragraph (a) above including the amount in Order 1 of the Primary Judgment, be varied.
6Pursuant to r10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and/or Slip Rule, and in accordance with Order 19 of the Primary Orders, and the agreement between the Wife and the Husband in relation to the [G Street, City H] United Kingdom property, that Order 12 of the Primary Orders be amended and replaced with:
12The Wife and the Husband do all acts and things and sign all documents necessary to release the remaining balance of the [G Street, City H] United Kingdom property sale proceeds from the [AP Lawyers] Trust Account to an account nominated by the Husband.
7Consequent upon the implementation of Order 6, the sum in Orders 1 and 5(c) in the Primary Orders be varied based on the changes as to the allocations to the Wife and the Husband of Item 2 in the schedule at paragraph 146 of the Primary Orders be amended as follows:
a)as to the allocation to the Wife, the amount "NIL" be varied and replaced with "$54,951.72"; and
b)as to the allocation to the Husband the amount "218,771" be varied and replaced with "163,819.28".
8In the alternative to Order 7 above, that the Wife on completion of acquisition of the [Suburb E] property or completion of its sale, whichever first occurs, pay to the Husband in addition to the amounts required pursuant to Order 1 in the Primary Orders or Orders 5 and 7 in the Primary Orders the amount of $54,951.72. (As per the original)
Finally, on 12 May 2023, the wife filed a Response to the husband’s Application in a Proceeding, and she sought the following orders:
1. This Application be listed before his Honour Justice Altobelli.
2. Pursuant to rl0.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and /or Slip Rule, and in accordance with Order 19 of the Court's Orders made on 10th February 2023, ("Primary Orders"), that Order 10 of the judgement be varied to include the following Orders:
3.Pursuant to Order 10 of this Court's judgement 10th February 2023 between [Ms Gresham] and [Mr Gresham], given by the Federal Circuit and Family Court of Australia (Division 1) at Sydney with Reference No. (P)SYC7914/2016 ('the Judgement'), the Court's Order should clarify that "the Wife" as referred to in the same judgement is to directly receive a sum which is equivalent to 30% of "the Husband"'s total value of the Husband's interest in the following:
(i) [BB Pension …80];
(ii) [CC Pension …55]; and
(iii) [VPLC] UK Pension ("the Husband's Pension Funds")
(a).For all intents and purposes, the sum due to the Wife shall be 30% of the total value of the Husband's Pension Funds.
(b).The sum due to the Wife shall be transferred by the Husband as stated in the Judgement by causing the [BB Pension …80] to be split, so that 30% of the Husband's Pension Funds is transferred from the [BB Pension …80] to the Wife.
(c).The Husband is to be subject to a Court Order ordering him to directly transfer 30% of the Husband's Pension Funds from the [BB Pension …80] directly to a bank account in the name of [Ms Gresham] by no later than the 25 June 2023.
(d).The Husband is moreover to be ordered to disclose the value of the Husband's Pension Funds as at date of Judgement.
4.ln the alternative to Order 3 above, of these Orders, specifically to separate out the amount known as the [VPLC] UK Pension ("the Husband Pension Fund'), shown above as 3(iii) [VPLC] UK Pension and in relation to Order 1 of the Primary Orders from 10th February 2023, which is presently stayed, that within 21 days of the making of these Orders, that the wife pay the Respondent husband ('the husband") the sum of $1,870,986.70 less the amount equivalent to the 30% of [VPLC] UK Pension ('the Husband's Pension Fund"), listed as 3 (iii) above in Order 3 of these Orders and add to
(a)the amount owing Husband, listed at Order 6, of these Orders, being the amount that was paid to the Wife from the sale disbursement from [G Street] (the UK property) prior to Judgement being delivered.
5.If Order 4 of these Orders is used, then Order 3 of these orders is varied to become, Pursuant to Order 10 of this Court's judgement 10th February 2023 between [Ms Gresham] and [Mr Gresham], given by the Federal Circuit and Family Court of Australia (Division 1) at Sydney with Reference No. (P)SYC7914/2016 ('the Judgement'), the Court's Order should clarify that "the Wife" as referred to in the same judgement is to directly receive a sum which is equivalent to 30% of "the Husband"'s total value of the Husband's interest in the following:
(i) [BB Pension …80]; and
(ii) [CC Pension …55]; ('the Husband's Pension Fund")
6.Consequent upon the implementation of Order 3, of these Orders, contemporaneous with the payment in compliance of Order 1 of the Primary Orders, from 10th February 2023, that the wife shall pay the Husband Respondent $32,504.72 being the amount released to the Wife from the sale proceeds from the UK property (known as [G Street]), prior to Judgement being delivered.
7.Consequent upon the implementation of Order 6, of the orders the Respondent Husband is seeking in the Application in a Proceeding, at 15th May 2023 mention, the Primary Orders be varied based on the changes as to the allocation to the Wife and the Husband of Item 2 in the schedule at the paragraph 146 of the Primary Orders = 10th February 2023 and be amended as follows:
(a) As to the allocation to the Wife, the amount "NIL" be varied and replaced with $32 504.72, and
(b) As to the allocation to the Husband the amount '$218,771" be varied and replaced with "$186,266.28.
8.Pursuant to r10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and /or Slip Rule, and in accordance with Order 19 of the Court's Orders made on 10th February 2023, ("Primary Orders" ), that Order 10 of the judgement be varied so that the word, "at the time of splitting" is removed and the valuation of the husband"s Pension funds known as (i), (ii), (iii) below, shall be the valuation equivalent to 30% of the total value of the Husband's interest based on the valuation on date of the Judgement of the Primary Orders, (10th February 2023).
(i) [BB Pension …80];
(ii) [CC Pension …55]; and
(iii) [VPLC] UK Pension ("the Husband's Pension Funds")
9.Pursuant to r10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and /or Slip Rule, and in accordance with Order 19 of the Court's Orders made on 10t h February 2023, ("Primary Orders"), that Order 8 of the Primary Orders, be varied based on the revisions sort by the Respondent Husband in his Orders - Application in a Proceeding at 15th May 2023 mention, that 3 (d) i, 3 d (ii), the consequence means in respect to the amount owing to the Wife's parents, that the Wife be liable, for $86, 250, therefore, the amount $517,500 in Order 8 (primary orders) is replaced with $86,250.
10.Commencing Term 3 of 2023 calendar year in Australia that the private school fees at their present schools, for [X], [Y] and [Z] ('the children of the marriage') be borne between the parties 15% to the Applicant Wife, ('the wife') and 85% to the Respondent Husband ('the Husband').
(a)That the outstanding private school fees for Term 2 2023 at the children's ([X], [Y] and [Z’s]) present schools are paid by the Respondent Husband ("the husband ").
(As per the original)
The orders sought by both parties raise issues about the interpretation, implementation, and enforcement of final orders that I made on 10 February 2023, concluding long running litigation about alteration of property interests. My jurisdiction to make orders in the circumstances is of coursed limited.
The husband was represented by Mr Lethbridge of senior counsel, and the wife represented herself. Whilst the wife did represent herself, she is clearly a highly intelligent and articulate woman. The material before the Court was as follows:
(1)In support of his case, the husband relied upon:
(a)Application in a Proceeding filed 5 May 2023;
(b)His affidavit filed 5 May 2023;
(c)His affidavit filed 17 April 2023;
(d)His affidavit filed 3 April 2023;
(e)Affidavit of Mr AO filed 5 May 2023;
(f)Written submissions filed 17 April 2023; and
(g)His Proposed Minute of Order filed 3 April 2023.
(2)In support of her case, the wife relied upon:
(a)Application in a Proceeding filed 3 April 2023;
(b)Her affidavit filed 3 April 2023;
(c)Response to an Application in a Proceeding filed 12 May 2023; and
(d)Written submissions filed 9 May 2023.
My limited jurisdiction to make orders was accurately reflected in the husband’s written submissions filed 17 April 2023. I have the power to amend the orders I made pursuant to the slip rule, which is now embodied in r 10.13 of the Federal Circuit and Family Court of Australian Family Law Rules 2021 (“the Rules”).
I also have powers, if necessary, to enforce certain obligations created by the orders I have made. These powers were outlined in paragraphs 3, 4 and 5 of the husband’s written submissions:
(3)Rule 10.13(e) and (h) operate to permit the Court to vary an order which either “does not reflect the intention of the Court” (at (e)) or where "there is an error arising in an order from an accidental slip or omission” (at (h)). These subsections and sub-sections (f) and (g) provide, in effect, a legislative enactment of the principles of law embodied in the slip rule.
(4)In Elyard Corporation Pty Ltd v DOB Needham Sydney Pty Ltd the Court there dealing with Order 35 Rule 7 of the then applicable Federal Court Rules said per Lockhart J at p.209 as follows:
"40…traditionally a Court's power to correct errors in orders arising from accident slips or omissions is conferred by an express rule of Court (eg O 35, r 7 of the Federal Court Rules); but it exists whether the provision is made by express rule or not.
…
45The slip rule is a qualification of the rule that a Court may not vary a duly passed or entered order which brings a proceeding to an end because it is obviously desirable that the litigation should be brought to an end.
The rule is very wide in its scope but is not available as a matter of course: Shaddock at CLR 597. 3
…
50.Courts have an inherent power implied jurisdiction to amend judgments which do not correctly state what was actually decided and intended.
Indeed, after a decree or order has been passed and entered a Court will not, unless by consent, permit it to be altered without a re-hearing except in cases of mistake or errors arising from accidental slips or omissions…”
(5)His Honour went on to note various circumstances in which authority confirmed the application of the rule was appropriate. For example, where the proposed amendment is one upon which no real difference of opinion can exist. It is also well settled that the application of the slip rule is not confined to giving effect to the intention of a judge at the time when the order was made or judgment given. It extends to the intention which the Court would have had but for the failure that caused the accidental slip or omission. The slip rule also extends to permit correction of an order or decree where the omission results from the inadvertence of a party’s legal representative.
(Footnotes omitted)
I note that I also have the power to make orders by consent of the parties, and in submissions senior counsel for the husband quite properly pointed out that, at least in theory, section 79A of the Family Law Act 1975 (Cth) (“the Act”) could also apply.
During the course of submissions, the parties quite sensibly and correctly made some concessions, and I propose to deal with those matters first. The wife conceded that Order 4, sought in her Response to an Application in a Proceeding filed 12 May 2023, effectively invited the Court to make an order that was contrary to the final orders made on 10 February 2023, and the findings that are set out in that judgment (Gresham & Gresham (No 2) [2023] FedCFamC1F 51) (“reasons for judgment”).
I ruled there that the husband’s overseas pension entitlements be divided in specie rather than offset against any interest of the husband in the family home in Suburb E (“the Suburb E property”). There was thus no jurisdiction to make the order proposed by the wife.
The wife conceded that I have made a calculation error in my reasons for judgment in accounting for a loan from the wife’s parents in the sum of $431,250. This is item 48 of the final balance sheet. At [53] my reasons for judgment demonstrate the intention for the wife to bear this liability solely, and thus for it not to appear on the balance sheet.
The only remaining query of the wife was the consequential numerical adjustment to the reasons for judgment to reflect this. On explanation, the wife was satisfied that the calculations proposed in the husband’s Order 3 was correct.
The wife also conceded the orders proposed by the husband in relation to the G Street property in City H (“the G Street property”). By way of background, on the balance sheet the sale proceeds of that property were allocated entirely to the husband.
As it turns out, however, the husband and the wife entered into a private agreement after judgment had been reserved for the premature distribution of those sales proceeds. The wife received $54,951.72, which reduced the amount payable to the husband to $163,819.28.
Part of this money was used to pay her personal legal fees. Now, this too must be adjusted between the parties on the basis that the entire sale proceeds were supposed to go to the husband. The judgment between the parties has presented some complexity in terms of drafting the orders, and the Court believes that the least complex manner to achieve this adjustment is simply to specify that the wife pay to the husband an additional $54,951.72, as proposed at Order 8 of the husband’s Minute of Order annexed to his Application in a Proceeding filed 5 May 2023, rather than go through and methodically amend the balance sheet and the reasons.
The wife did refer to the treatment of various payments out of capital for legal fees and expert’s fees, and the husband made contrary submissions. The Court is not satisfied that the issues raised are covered by the slip rule, and thus the Court has no jurisdiction as regards these issues.
The main contentious issue between the parties arose from Order 10 made 10 February 2023. This is the order that required both parties to do all things to cause the BB Pension to be split between them so that the wife received an equivalent of 30 per cent of the total value of the husband’s pension entitlements, which also included the CC Pension, and the VPLC United Kingdom pension (“the UK pension”).
In essence, the issue between the parties arises from the possibility that the values of the pensions have fluctuated from the figures referred to in the balance sheet. Indeed, the wife submitted that these values have changed since the values attributed at trial. The Court anticipated the possibility that values would fluctuate at [145] of its reasons for judgment, and held that in order to do justice and equity between the parties, the relevant values would have to be at the date of splitting.
The Court notes that it was always the wife’s main proposal that she acquire the husband’s share in the Suburb E property. That is, to buy him out. The orders specifically gave her that opportunity. It was always the wife’s proposal that the husband retain the pension fund, and that orders reflect that, at least to the extent of 70 per cent.
The wife was quite firm in her submissions to the Court that she was ready, willing, and able to buy out the husband once the relevant calculations had been clarified. Of course, the wife would be buying out the husband at the value on the balance sheet, $10,800,000. There was no suggestion by any party that the payout figure should be determined by reference to the current market value of the Suburb E property at the time that she acquired the husband’s share.
The Court recognised at [145] of its reasons for judgment that the Suburb E property was the only asset that may need to be realised. As it turns out in this case that will not happen, as the wife proposes to buy the husband out.
The last sentence of [145] of the reasons for judgment must be read in conjunction with the preceding sentence that refers specifically to the pension funds. The effect of both sentences is that in order to do justice and equity between the parties, the relevant values of the pension funds must be at the date of splitting.
In the same way that it could not be contended that the substantive 60/40 split would need to be adjusted to reflect the actual current market value of the home at the time that the wife acquired the husband’s share, it must also follow that there cannot be an adjustment to the 60/40 substantive split if the values of the pension funds have fluctuated.
The obligation of the Court was to make a just and equitable order between the parties under section 79(2) of the Act, and so far as is practicable, to make orders as will finally determine the financial relationships between the parties to the marriage, and avoid further proceedings between them (s 81 of the Act).
Thus [145] of the reasons for judgment was intended to draw the line and not allow the parties to become engaged in endless speculation about values. In essence, the husband’s primary contention was that Order 10, when read in conjunction with [145], meant that the values must be established at the time of spitting, and the wife receives 30 per cent to be paid out of the BB Pension.
However, whilst this did not require a substantial adjustment to the overall division of property which required the wife to receive 60 per cent, it would become necessary for the wife to make an adjustment in his favour if the value of the pension funds was reduced at the time of splitting, as compared to the value allocated on the balance sheet.
But that is not what the Court intended. It would be entirely impractical to implement. For example, would the adjustment be reflected in the value of the wife’s split of the pension funds, or alternatively in the cash amount to be paid at the time the wife acquired his share in the Suburb E property.
This issue is not addressed in the husband’s submissions. The wife contends that the value of the BB Pension has decreased by $100,000. She annexes to her affidavit filed 3 April 2023 a document entitled “Your portfolio holdings 10 February 2023 [Mr BN]”. This document suggests the total value at that date was $1,407,196.94.
On the balance sheet this fund is noted at $1,542,451. Of course the relevant value is at the date of splitting, and the relevant value is of all three funds, not just one. She further contents that she is entitled to 60 per cent overall, thus at least inferring that if the value is less than the amount noted on the balance sheet, an adjustment will need to be made in her favour to compensate for this.
Of course, this is speculative. Depending on the reduced value of the pension funds, it may be that an adjustment needs to be made in favour of the husband. To illustrate the fluctuating nature of the value of the pension funds, attached to the husband’s affidavit is an email dated 27 March 2023, reporting that the value of the BB Pension was $1,366,858.
Moreover the value of the CC Pension was $522,715, down from $591,107 on the balance sheet. And the UK pension was $331,930, down from $345,992. These fluctuations in values were specifically contemplated at [145] of the reasons for judgment. It was the Court’s intention to draw the line.
The relevant value is the value of the pension funds at the time of splitting. Moreover, the relevant exchange rate is at the date of splitting. No adjustment either way was contemplated. No further adjustment was intended by reference to the overall 60/40 split.
A number of other matters were raised in submissions. The Court finds that there is no evidence to support any suggestion that the proposed transaction involving the pension funds involved some form of tax evasion. If anything, there seems to have been a misunderstanding that Order 10 dealing with the pension funds actually involved a 30 per cent split of the UK pension as opposed to the value of that fund being taken into account as part of the split of the BB Pension.
The Court finds that there is no evidence to support the wife’s contention that notwithstanding the Court’s findings about how, when, and under what circumstances the husband could take early retirement, and thus access his pension funds, he could somehow access them soon, as he will shortly turn 55 years of age.
The Court does not believe that there is any need to change the wording of existing Order 10 based on concerns expressed by the wife through her lawyers about the enforceability of Order 10. Indeed, the order proposed by the wife in lieu of Order 10 is highly problematic, and it purports to require the husband to do something that only a trustee of the fund can do.
The Court has no jurisdiction in the present application to make any determination about private school fees and private health insurance.
Out of abundant caution, this Court confirms that the relevant date of the pension funds is the value as at the date of splitting, and that the relevant exchange rate is the date of splitting.
In her Application in a Proceeding filed 3 April 2023, the wife sought a number of orders which appeared to be in the nature of machinery provisions relating to withdrawals of caveats and consequential payments on settlement. These are practical matters that are best left to the conveyancers.
The Court is satisfied from the materials presented to it, including the email correspondence tendered on 15 May 2023 between the husband and the Director of the Trustee of the pension funds in Country Q, that all the wife needs to do to implement Order 10 is to establish a compliant pension fund in Country Q. That is an obligation imposed on her under Order 10.
Turning to the form of orders to be made, the effect of the Court’s ruling is that a number of the orders proposed by the husband are made. I will refer to this shortly. Some minor stylistic changes have been made.
The proposed orders amend the reasons for judgment. The power under r 10.13 of the Rules is to vary orders, but it is in fact r 10.14 of the Rules that provides the power to vary the reasons for judgment. An amended judgment will be issued to reflect the orders made today, as soon as possible.
Orders will be made probably within the next 30 minutes, and I will just describe them to you. Firstly, pursuant to rules 10.1(13) and 10.1(14)of the Rules, the error about $431,250 will be corrected, both in the orders and in the reasons for judgment. The effect of that will be that for the purposes of Order 1 and 5(c) of the reasons for judgment, the amount payable to the husband will be $1,870,986.70 and not $1,698,487. Pursuant to Order 10 there is an order that specifies that the pension split is based on the value at the time of splitting and the exchange rate at the time of splitting. There is an order that corrects the problem that arose from the distribution of the proceeds of the G Street property and an order will be made that both parties sign all documents necessary to release the balance to the husband and that the wife, once she acquires the husband’s interest in the Suburb E property, for all practical purposes, reimburses to him an extra $54,951.72. Importantly, the stay granted by Order 4 made on 4 April 2023 is forthwith lifted and discharged. All extant applications are otherwise dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 19 May 2023
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