FAMILY COURT OF AUSTRALIA
| HAMPTON & FARLEY AND ORS | [2013] FamCA 213 |
| FAMILY LAW ─ PROPERTY SETTLEMENT ─ De facto relationship ─ Where the relief sought by the de facto wife resulted in the corporation (owned by the de facto husband and the his son), a partnership between the de facto husband and his son, and the son in his own right intervening in the proceedings, and seeking orders in the exercise of the Court’s accrued jurisdiction ─ Where determination of the property of the parties to the de facto relationship clearly involved the exercise of the Court’s accrued jurisdiction ─ Where the Court concluded that an order altering the interests in property of the parties to the de facto relationship would be just and equitable ─ Where the Court’s conclusion as to a just and equitable alteration of interests in the property of the parties to the de facto relationship in favour of the de facto wife could be satisfied without recourse to any of the property which, on the Court’s findings of fact, were found to be impressed with a trust in favour of the de facto husband’s son ─ Where to view the day-to-day contributions of the parties to the de facto relationship during their cohabitation as other than equal would be unfair to the de facto wife ─ Where the Court concluded that the de facto wife’s contribution based entitlement should be adjusted by approximately 15 per cent by virtue of the disparity of financial resources of the parties which the evidence revealed ─ Splitting order made in favour of the de facto wife ─ Interim spousal maintenance order made in favour of the de facto wife FAMILY LAW ─ TRUSTS ─ Where on behalf of the de facto husband, the son and the corporation, it was submitted that the de facto husband’s legal interests in the partnership and the corporation were held, or should be declared to be held, by him on trust for the son ─ Where Senior Counsel for the son submitted that both the de facto husband and wife should be estopped from denying that the son had been encouraged to believe that the de facto husband’s interest in the farm or farms would “one day” be his, and had relied upon that promise in circumstances where the evidence established that it would be unconscionable to allow the de facto husband or wife to depart from that assumption ─ Discussion of the principles of equitable and proprietary estoppel with respect to the Court making a declaration of trust ─ Where the Court was not persuaded that the de facto wife should be regarded as estopped from departing from the assumption which the Court found the de facto husband had created or encouraged in the mind of the son, but that it did not preclude the son from successfully asserting that the de facto husband should be estopped in equity from departing from that assumption ─ Where the Court was satisfied that… |
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- AGLC
- HAMPTON & FARLEY AND ORS [2013] FamCA 213
- Case
- [2013] FamCA 213
- Decision Date
CaseChat Overview and Summary
The Court was required to determine several legal issues. Firstly, it needed to ascertain whether the determination of the property of the de facto parties necessitated the exercise of the Court's accrued jurisdiction, given the involvement of third parties and their claims. Secondly, the Court had to consider whether an alteration of property interests between the de facto parties would be just and equitable. Thirdly, the Court was asked to determine whether Mr Farley Snr held his legal interests in the partnership and corporation on trust for his son, Mr Farley Jnr, and whether equitable and proprietary estoppel principles could be invoked to declare such a trust, particularly in light of representations made by Mr Farley Snr to his son.
Coleman J concluded that an order altering the property interests of the de facto parties was just and equitable. The Court found that the day-to-day contributions of Ms Hampton during the de facto relationship were to be viewed as equal, and her entitlement was adjusted by approximately 15 per cent to account for the disparity in financial resources between the parties. The Court also found that while Ms Hampton was not estopped from departing from an assumption created by Mr Farley Snr regarding the son's future inheritance, Mr Farley Snr was estopped in equity from departing from his representation to his son that the farming properties would one day be his. Consequently, the Court declared that Mr Farley Snr held his legal interest in the farming properties on trust for Mr Farley Jnr in remainder, with Mr Farley Snr as life tenant, excluding property held as trustee for the superannuation fund. The Court made a splitting order in favour of Ms Hampton regarding Mr Farley Snr's superannuation interest and ordered interim spousal maintenance in her favour.
Orders
Orders of the court
1.
That Mr Farley Snr and Mr Farley Jnr do all acts and things and execute all deeds, documents, instruments and writings and cause all necessary resolutions to be passed declaring that Mr Farley Snr, Mr Farley Jnr and Farley and Son Pty Ltd, in its own right, hold the fee simple to the real property vested in the names of the said Mr Farley Snr, Mr Farley Jnr and/or Farley and Son Pty Ltd upon trust:
(a) For Mr Farley Snr as life tenant;
(b) For Mr Farley Jnr in remainder.
2.
Note that order 1 hereof does not apply to the legal title to real property which is held as Trustee for Farley and Son Pty Ltd Superannuation fund.
3.
Grant leave to Senior Counsel and Counsel for Mr Farley Snr, Mr Farley Jnr and Farley and Son Pty Ltd to file minutes of order to give further effect to order 1 hereof, provided that such minutes of order are filed within 21 days of these orders.
4.
That in accordance with s 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the superannuation interest of Mr Farley Snr in the Farley and Son Pty Ltd Superannuation Fund (“the Fund”), Ms Hampton or her personal legal representative be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using the base amount of $500,000 (“the superannuation split”) and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made out but for these Orders.
5.
That the Trustee of the Fund comply with the obligations imposed upon trustees of eligible superannuation plans under the Family Law Act 1975 (Cth) and Family Law (Superannuation) Regulations 2001.
6.
That Orders 4 and 5 hereof bind the Trustee of the Fund and these Orders take effect from the operative time being the fourth business day after the date of service of these Orders on the Trustee.
7.
That pursuant to Rule 14F of the Family Law (Superannuation) Regulations 2001 any payments from the Fund made after the trustee has rolled over or transferred the transferable benefit to a Fund of Ms Hampton’s choosing are not splittable payments.
8.
That upon payment and the superannuation split being completed any interest Ms Hampton may have in the company, the Fund and the partnership known as Farley and Son (“the partnership”) vest absolutely in Mr Farley Snr, provided that Mr Farley Snr, Mr Farley Jnr and Farley and Son Pty Ltd jointly and severally indemnify and keep indemnified the applicant in respect of all liabilities of whatsoever nature past, present and future relating to either the company and/or the partnership.
9.
That, pending compliance with these orders, Mr Farley Snr be restrained from encumbering, charging, or otherwise dealing with or receiving his entitlement in the Farley and Son Pty Ltd superannuation fund, or reducing the balance of his interest in such fund below the sum of $500,000.
10.
That unless otherwise specified in these orders and save for the purposes of enforcing any moneys due under these or any subsequent orders:
(a) All parties be solely entitled to the exclusion of the other to all superannuation entitlements and other property including choses-in-action in the possession of such party as at the date of these orders;
(b) Assurance policies remain the sole property of the owner named thereon;
(c) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
11.
That Mr Farley Snr continue to pay or cause to be paid to Ms Hampton by way of interim spouse maintenance the sum of $800 per week and that such payment be made by direct bank transfer into such account as nominated by Ms Hampton and that such payments continue until all obligations of Mr Farley Snr and Mr Farley Jnr pursuant to these orders have been fully complied with, whereupon this order shall be discharged.
12.
That in the event any monies payable to Ms Hampton by Mr Farley Snr remain outstanding beyond the due date of payment then Mr Farley Snr, in addition to the amounts outstanding also pay to the applicant interest calculated at the applicable rate under the Family Law Act and Rules from the due date of payment until the actual date of payment.
13.
That if either party refuses or neglects within 28 days to execute any and all documents and do all other acts and things necessary to give effect to these orders:
(a) The Registrar of the Family Court of Australia at Sydney is hereby appointed pursuant to s 106A(1) of the Family Law Act 1975 (Cth) to execute all deeds and documents in the name of either party, and do all acts and things necessary to give validity and operation of theses Orders;
(b) The defaulting party is ordered to pay all reasonable solicitor/client costs incurred by the other party for the purposes of enforcing this order, to be taxed if not agreed.
14.
That Ms Hampton relinquish any entitlement she may have, howsoever arising, in or to the property of Mr Farley Snr, Mr Farley Jnr, the partnership known as Farley and Son, and Farley and Son Pty Ltd, and sign all documentation necessary to cause any such entitlement to be released, transferred or assigned to, or in such manner as the person or entity entitled to the benefit of this order directs in writing.
15.
That Mr Farley Snr, Mr Farley Jnr, the partnership known as Farley and Son and Farley and Son Pty Ltd do jointly and severally indemnify Ms Hampton with respect to any liability which Ms Hampton may have to or in respect of the said Mr Farley Snr, Mr Farley Jnr, the partnership known as Farley and Son and Farley and Son Pty Ltd.
16.
That all other applications and cross-applications are hereby otherwise dismissed.
17.
That costs be reserved.
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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