FAMILY COURT OF AUSTRALIA
| HARRINGTON & HARRINGTON | [2010] FamCA 731 |
| FAMILY LAW – PROPERTY – Settlement in relation to marriage |
| Family Law Act 1975 (Cth) |
| Lee Steere and Lee Steere (1985) FLC 91-626 Ferraro and Ferraro (1993) FLC 92-335 Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355 Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414 Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693 Cabbell and Cabbell [2009] FamCAFC 205 Mitchell and Mitchell (1995) FLC 92-601 |
| APPLICANT: | Ms Harrington |
| RESPONDENT: | Mr Harrington |
| FILE NUMBER: | SYC | 7912 | of | 2007 |
| DATE DELIVERED: | 19 August 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Johnston |
| HEARING DATE: | 19 & 20 July 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Livingstone |
| SOLICITOR FOR THE APPLICANT: | Beilby Poulden Costello |
| COUNSEL FOR THE RESPONDENT: | Mr Henness |
| SOLICITOR FOR THE RESPONDENT: | Bowring Macaulay & Barrett |
Orders
The husband do all acts and things and execute all deeds, documents, instruments and writings necessary to procure the transfer to the wife, subject to order 2 hereof, all of the husband’s right, title and interest in the property known as T property in the State of New South Wales being the whole of the land contained in Folio Identifier … (“the T property”).
That the husband pay to the wife, or as she shall direct in writing:
2.1All mortgage payments at a rate sufficient to repay the mortgage fully not later than three years from the commencement of these orders and the husband is to ensure that he has paid sufficient funds to the wife to ensure that at least one-third of the current outstanding balance is fully repaid on each anniversary of the commencement of these orders;
2.2The sum of $132 365 in three instalments of $44 122 the first payable not later than one year from the date of commencement of the orders, the second payable not later than two years from the said date and the third payable not later than three years from the said date.
That the husband pay to the wife the following sums as and when they fall due until the husband has complied with his obligations pursuant to order 2 hereof:
3.1The cost of all insurance premiums payable to General Insurance Limited (“GIO”) necessary to maintain the present fire and all risks home and contents insurance policy over the T property provided that the indemnity coverage be increased by Consumer Price Index (“CPI”) increases calculated as at the anniversary date of the policy, the first of such increases to occur on the first anniversary date of the policy after the making of these orders, the relevant CPI being the Sydney All Ordinaries Index.
3.2The wife’s membership and medical and dental insurance with Medibank Private at the existing level of cover provided for her.
That the husband pay to the wife, or as she shall direct in writing, as and when they fall due payments of interest and principal of the wife’s personal loan at the Commonwealth Bank…
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- AGLC
- Harrington and Harrington [2010] FamCA 731
- Case
- [2010] FamCA 731
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific terms of property division, including the transfer of the "T property" to the wife, subject to certain conditions. It also needed to establish the husband's financial obligations, encompassing mortgage payments, lump sum payments, insurance premiums, loan repayments, and spousal maintenance. Furthermore, the court addressed the husband's responsibilities regarding business entities, including restrictions on dealings with their assets and the provision of financial documentation. The orders also stipulated the allocation of superannuation interests and the ultimate transfer of certain business entities and a motor vehicle to the wife.
Justice Johnston's reasoning, as reflected in the orders, aimed to achieve a comprehensive financial settlement. The husband was directed to transfer his interest in the T property to the wife and to make substantial payments over three years, including mortgage repayments and a significant lump sum. He was also ordered to cover ongoing expenses such as insurance, loan repayments for a vehicle used by the parties' daughter, and spousal maintenance, with adjustments for inflation. To secure compliance, the husband was restrained from certain actions concerning his business entities and required to provide financial transparency. Upon the husband's full compliance, the wife was to transfer her interest in these entities to him. The court also ordered a superannuation splitting order under the *Family Law Act 1975*, allocating $60,000 of the husband's superannuation to the wife.
The final orders stipulated that they would commence operation on 3 September 2010. Each party was granted leave to relist the matter for enforcement or implementation purposes. The court also appointed the Registrar of the Family Court of Australia to execute documents on behalf of either party should they fail to comply with their obligations. The husband was ordered to pay specific costs related to expert evidence provided during the proceedings.
Orders
Orders of the court
1.
The husband do all acts and things and execute all deeds, documents, instruments and writings necessary to procure the transfer to the wife, subject to order 2 hereof, all of the husband’s right, title and interest in the property known as T property in the State of New South Wales being the whole of the land contained in Folio Identifier … (“the T property”).
2.
That the husband pay to the wife, or as she shall direct in writing:
2.1 All mortgage payments at a rate sufficient to repay the mortgage fully not later than three years from the commencement of these orders and the husband is to ensure that he has paid sufficient funds to the wife to ensure that at least one-third of the current outstanding balance is fully repaid on each anniversary of the commencement of these orders;
2.2 The sum of $132 365 in three instalments of $44 122 the first payable not later than one year from the date of commencement of the orders, the second payable not later than two years from the said date and the third payable not later than three years from the said date.
3.
That the husband pay to the wife the following sums as and when they fall due until the husband has complied with his obligations pursuant to order 2 hereof:
3.1 The cost of all insurance premiums payable to General Insurance Limited (“GIO”) necessary to maintain the present fire and all risks home and contents insurance policy over the T property provided that the indemnity coverage be increased by Consumer Price Index (“CPI”) increases calculated as at the anniversary date of the policy, the first of such increases to occur on the first anniversary date of the policy after the making of these orders, the relevant CPI being the Sydney All Ordinaries Index.
3.2 The wife’s membership and medical and dental insurance with Medibank Private at the existing level of cover provided for her.
4.
That the husband pay to the wife, or as she shall direct in writing, as and when they fall due payments of interest and principal of the wife’s personal loan at the Commonwealth Bank of Australia in relation to a loan in her name entered into for the acquisition of a motor vehicle, registration number …, obtained for the parties’ daughter, E Harrington, until the said loan is repaid in full.
5.
That the husband pay the sum of $600 per week by way of spousal maintenance for a period of three years to the wife with CPI increases calculated annually, the base index being the All Ordinaries Index (All Groups Sydney), the first of such payments to commence seven days from the date hereof and that the said payment be increased in accordance with the last CPI on each anniversary date of these orders, such sum to be paid to the wife or as she shall direct in writing.
6.
That pending the making of the last of the payments referred to in orders 2, 3, 4 and 5 hereof, that the husband be restrained from appointing further directors or beneficiaries in the following:
6.1 H Services;
6.2 P Pty Limited;
6.3 P Trading Trust;
collectively referred to as “the entities”.
7.
That pending compliance with orders 2, 3, 4 and 5 hereof, that the husband be restrained, in his capacity as a director, shareholder or creditor of the entities, from executing any document, charge, mortgage, encumbrance, transfer (the dealings), save in the ordinary course of business, of any of the assets and undertakings of each of the three entities and that where any such dealing is proposed by the husband, that he give one month’s written notice thereof to the wife including full particulars of any such dealing.
8.
That pending compliance with orders 2, 3, 4 and 5 that the husband provide to the wife for the term that such orders are operative, the following documents as and when they fall due for filing and no later than seven days of such filing:
8.1 All income tax returns and assessments in relation to:
8.1.1 The husband’s personal tax position;
8.1.2 That of any of the entities; and further;
8.1.3 That the husband provide BAS statements and management accounts of the entities on a quarterly basis to the wife.
9.
That the husband do all things necessary and execute all documents necessary to procure the execution of a floating and fixed charge (“the charge”) in favour of the wife and all documents necessary in order to secure the compliance by the husband and the company with the provisions of these orders and that the husband, in his capacity as a director or shareholder of the company, execute that charge and return it to the wife’s solicitors within seven days of the submission of the charge to the husband’s solicitors.
10.
That upon the husband completing compliance with orders 2, 3, 4 and 5 that the wife do all acts and things necessary to transfer to the husband all of her right, title and interest in the entities known as P Pty Limited, P Trading Trust and H Services.
11.
That the husband do all things necessary so as to cause the entities to make available to the wife the four wheel drive Prado motor vehicle, registration number …, including paying for its reasonable maintenance, registration and all insurances and to ensure that not later than three years from the date of commencement of these orders the entities transfer the vehicle to the wife free of encumbrance.
12.
That the husband be responsible for and indemnify the wife in relation to the following:
12.1 All liability of whatsoever kind or nature in relation to P Pty Ltd, P Trading Trust and H Services including but not limited to all business dealings, any liability, claims, costs, demands, suits, actions, and proceedings which may be made against or incurred by the husband or the wife in relation to the said entities or any business conducted by such entities;
12.2 The husband shall bear the responsibility as and when they fall due in relation to all tax liability, incurred in the past, present and the future as a result of his business dealings including but not limited to the entities referred to in these orders including any liability that the wife may receive in respect thereof.
13.
That the husband bear the onus for and be responsible for the outstanding tax liability in relation to the wife’s tax return for the financial years ending 2005/2006, 2006/2007, 2007/2008 and 2008/2009 and indemnify the wife in respect thereof.
14.
That the wife forthwith transfer to the husband her interest in the Joint Westpac Bank account.
15.
That other than as herein provided the husband and wife are each declared the sole legal and beneficial owners of all other items of property in their respective possession and / or control, including but not limited to money, shares, real property, motor vehicles, furniture, furnishings and personal belongings.
16.
That pursuant to section 90MT(4) of the Family Law Act 1975 (“the Act”), the Trustee of Media Super (“the Fund”) allocate an amount of $60,000.00 of the husband’s interest in the Fund to the wife (“the base amount”) by way of a splitting order as follows:
That pursuant to section 90MT(1)(a) of the Act:
16.1 The wife is entitled to be paid the amount of $60,000.00 in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
16.2 The husband’s entitlement in the Fund is correspondingly reduced;
16.3 That the Trustee do all things necessary to pay the entitlement whenever the Fund makes a splittable payment out of the husband’s interest in the Fund;
16.4 That this order have effect from the operative time and the operative time is seven days from the date of the order;
16.5 Having been accorded procedural fairness in the making of these orders, order 16 shall bind the Trustee of Media Super.
17.
That each party be given leave to relist this matter upon giving seven days notice to the other for the purpose of enforcing or implementing these orders.
18.
That the husband pay the costs of F Accountants in relation to the preparation and attendance costs in respect of evidence provided by Ms B in these proceedings on 20 July 2010.
19.
That in the event that the husband fails to pay any periodic or other sum by the date prescribed by these orders, the husband shall pay interest to the wife on such sum as remains outstanding to the wife, calculated from the due date for payment until the date of such payment at the rates the wife is required from time to time to pay under the mortgage secured over the T property and pursuant to these orders.
20.
That the husband and the wife do all such things and execute all such instruments, documents and writings as may be necessary to comply with these orders and in the event that the husband or the wife fails in this obligation, that pursuant to s 106A of the Family Law Act 1975 the Registrar of the Family Court of Australia in Sydney shall be hereby appointed to perform all such actions and things and execute all such instruments, documents and writings on behalf of either of the husband or the wife to give effect to these orders.
21.
That these orders not commence operation until 3 September 2010.
22.
That both parties have leave to relist these proceedings for further submissions in relation to the form of the orders only at any time until 2 September 2010.
23.
That all exhibits be released.
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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