Hartanto and Hartanto

FAMILY COURT OF AUSTRALIA

HARTANTO & HARTANTO

[2007] FamCA 780

FAMILY LAW - PROPERTY SETTLEMENT - Consent orders - Fair and equitable

Family Law Act 1975 (Cth)

APPLICANT:

MR HARTANTO

RESPONDENT:

MRS HARTANTO

FILE NUMBER:

MLF

2354

2005

DATE DELIVERED:

31 JULY 2007

PLACE DELIVERED:

MELBOURNE

JUDGMENT OF:

YOUNG J.

HEARING DATE:

31 JULY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR BROWN SC

SOLICITOR FOR THE APPLICANT:

Nicholes Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Spicer

SOLICITOR FOR THE RESPONDENT:

Goddard Elliott

ORDERS

DEFINITIONS:

(1) In these Minutes:-
"The Settlement Date" means the 15th day of October 2007.
"The home" means the former matrimonial home of the parties situate at and known as G in the State of Victoria being the land more particularly described in Certificate of Title Volume … Folio … .
"The [M] property" means the property situate and known as M.
"[H Company]" means H Pty. Ltd. (ACN … ) formerly known as K Pty. Ltd.
The "Victorian Companies" means E Pty. Ltd. (A.C.N. …) and B Pty. Ltd. (A.C.N. …).
"The Trust" means the H Family Trust established pursuant to a Deed of Settlement dated the 1st day of July 1976 between Mr S as Settlor and H Company as Trustee.
"The Sydney Units" means L1 and L2 in the State of New South Wales.
"The Indonesian entities" means the entities known as "[EL]" and "[AP]".
REAL PROPERTY:
2 On or before the Settlement Date:-
(a)The Husband sign all such documents and perform all such acts as may be required to effect a transfer to the Wife all his right, title and interest in the home at the expense of the Wife;
(b)The parties hold their respective interests in the home upon trust pursuant to these Orders;
(d)Neither party encumber the home without the consent in writing of the other party.
Pending the said transfer the Wife have the sole right to occupy the home and that during such right of occupation the Wife pay all rates and taxes and like apportionable outgoings of the home as they fall due;
4. On before the Settlement Date:-
(a)The Wife sign all such documents and perform all such acts as may be required to transfer to the Husband all her right, title and interest in the Sydney Units at the expense of the Husband;
(b)The Husband have the sole right to occupy the Sydney Units and/or receive the rents and profits as from the date of this Order or compliance with paragraph 2 (a) of these Orders, whichever event last occurs and that during such right of occupation the Husband pay all rates and taxes and like apportionable outgoings of the Sydney Units as they fall due;
(c)The parties hold their respective interests in the Sydney Units upon trust pursuant to these Orders;
(d)The Wife at her expense procure a discharge of any mortgage affecting the Sydney Units or either of them.
(e)Neither party encumber the Sydney Units without the consent in writing of the other party.
CORPORATE AND TRUST ASSETS:
On or before the Settlement Date, the Wife sign all such documents as prepared by or on behalf of the Husband at his expense:-
(a)To transfer to the Husband or his nominee her shares in the Victorian Companies;
(b)To effect her resignation as a Director of the Victorian Companies;
(c)Save in respect of such amounts as are payable out of funds held by the Victorian Companies, each party be responsible for one half of the reasonable accounting expenses currently outstanding in relation to the administration of the Victorian Companies and such further accounting expenses as may reasonably be incurred in relation to the winding up or deregistration of the Victorian Companies as the case may be, in the event that the Victorian Companies are unable to make such payments from their own resources.
Save as provided in the preceding paragraph of these Orders, the Husband be responsible for and indemnify the Wife in respect of all loan accounts allocated to the Wife in the books of account of the Victorian Companies and all liabilities owed by the Victorian Companies including without limitation of the generality of the foregoing all creditors and taxation liabilities relating thereto. The Husband be entitled to receive all dividends to be declared by the Victorian Companies from and after the date of these Orders and to retain the benefit of all franking credits relating thereto and he be liable to pay all or any taxation including taxation otherwise payable by the Wife relating to any such dividends.
On or before the Settlement Date, the Wife sign all such documents as prepared by or on behalf of the Husband at the expense of the Husband:-
(a)To transfer to the Husband or his nominee her shares in H Company;
(b)To effect her resignation as a Director of H Company;
(c)Nothwithstanding anything hereinbefore contained, save in respect of such amounts as are payable out of funds held by H Company, each party be responsible for payment of one half of Capital Gains Tax resulting from the sale of the M property, and attend to payment of such tax when it falls due for payment.
The Wife sign all such documents prepared on behalf of the Husband and at his expense as may be required to transfer to the Husband or his nominee all of her right, title and interest in the Trust.
Save as provided in paragraph 7 (c) of these Orders, the Husband be responsible for and indemnify the Wife in respect of all loan accounts allocated to the Wife in the books of account of the Trust and all liabilities relating to H Company and the Trust including without limitation of the generality of the foregoing all taxation liabilities relating thereto.
The Wife sign all such documents prepared by or on behalf of the Husband and at the expense of the Husband as may be required to transfer to the Husband or his nominee all of her right, title and interest in the Indonesian entities (if any).
Each of the parties pay one half of the following costs associated with these proceedings:-
(a)Any outstanding fees to be rendered by the Single Expert, Mr F.
(b)The room hire costs of the C Centre;
(c)The fees to be rendered by Mr. Rosen of Counsel as Mediator.
GENERALLY:
That unless otherwise specified in these orders and save for the purposes of enforcing the payment of any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the Wife.
(b)each party forego any claims they may have to any superannuation or work related benefits or entitlements belonging to or earned by the other.
(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;
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
13. That all extant applications be otherwise dismissed.
IT IS DIRECTED:
That these proceedings removed from the Pending Cases List.
That the ex tempore reasons be transcribed and placed on the Court file and a copy made available to each of the parties.
THE COURT NOTES:
That the parties intend these Orders as far as practicable determine the financial (and other) relationships between them and avoid further proceedings between them.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2354 of 2005

MR HARTANTO

Applicant

And

MRS HARTANTO

Respondent

REASONS FOR JUDGMENT

The matter of Hartanto was before the court in the interim hearing defended list. There were a number of interim or procedural issues to be resolved and this matter was to continue towards a long and expensive litigation contest. The good news, and I congratulate the parties and the practitioners is all matters have now been resolved. I am advised that there was outside mediation and that was successful. As a result of either a pragmatic decision, or the advice of very experienced legal practitioners or generally the parties being prepared to each make a decision and to terminate conflict and resolve all financial issues this case is now concluded.
The general overview of this case is it is a very long marriage with two adult children. There are sufficient assets to financially provide for the support, wellbeing and financial comfort of both parties. The apportionment of assets seems commonsense, the wife retaining a valuable Melbourne home, the husband living interstate in Sydney and otherwise retaining the business, overseas assets of the parties, other assets have been sold. Debts liabilities and tax will be paid. The wife is to be provided with an ironclad guarantee of financial protection from taxation issues.
Each of them have no doubt hard earned and generous superannuation provisions which they will manage and which will support each of them. In general terms I am advised the husband's superannuation assets total $2.3 million or thereabouts, the wife $2.5 million or thereabouts. I observe there is a 10 year age difference between the parties. I have asked through counsel whether both of the parties understand the finality of the order. I accept they do on the level of legal and accounting advice that they have received. I accept also that they understand the assets and the general financial division as between each of them.
It has been identified to the court on behalf of the husband that the breakdown of assets is generally in the 55 per cent to the wife, 45 per cent to the husband or thereabouts. Mr Spicer for the wife does not disagree but takes a slightly different approach by way of explanation. Of course ultimately the exact percentage might have depended upon the outlay of many tens of thousands of dollars in further valuations and identification overseas assets and the businesses there conducted. I view this as a commercial pragmatic approach that is one of commonsense and because the parties understand the settlement and have been so professionally advised that I will make final orders.
I formally declare under section 79(2) of the Act that these orders are just and equitable and that both parties are fully informed as to all aspects of the financial circumstances where relevant and these orders.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:
Date: 3 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HARTANTO & HARTANTO

[2007] FamCA 780

31 July 2007

Key Legal Topics

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Family Law

Equity & Trusts

Commercial Law

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