FAMILY COURT OF AUSTRALIA
| HAWKINS & HAWKINS | [2016] FamCA 440 |
| FAMILY LAW – PROPERTY SETTLEMENT – Twelve year marriage and no children – husband made substantial initial capital contribution – Where 10 years elapsed between parties’ final separation and trial whilst wife pursued Supreme Court litigation of what were ultimately found to be “baseless” claims – Where wife unilaterally acted to obtain substantial funds secured against the former matrimonial home to fund litigation – Where wife spent $634,000 on Supreme Court litigation and caused the husband to spend $235,000 – Wife solely responsible for economic consequences of Supreme Court litigation – Where 10 years post-separation period and events to be considered – Assessment of contributions in 12 year marriage and 10 years post-separation – Notional add backs – Post-separation liabilities excluded from notional pool considered in determining adjustment – 60/40 apportionment in husband’s favour for contribution – Section 75(2) factors and adjustment – Just and equitable orders FAMILY LAW – SPOUSAL MAINTENANCE – Lump sum spousal maintenance | |
| Blair Ors & Perpetual Trustee Co Ltd v Curran (Adam’s Will) (193) 62 CLR 464 | |
| Family Law Act 1975 (Cth) | |
Corporations Act 2001 (Cth)
| Evidence Act 1995 (Cth) |
| APPLICANT: | Mr Hawkins |
| RESPONDENT: | Ms Hawkins |
| FILE NUMBER: | BRC | 6561 | of | 2007 |
| DATE DELIVERED: | 3 June 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 14 and 15 March 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Selfridge |
| SOLICITOR FOR THE APPLICANT: | Wrightway Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Trout |
| SOLICITOR FOR THE RESPONDENT: | DuxRoe |
Orders
IT IS ORDERED:
Property Settlement
The husband shall retain absolutely as the sole legal and beneficial owner to the…
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- HAWKINS & HAWKINS [2016] FamCA 440
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- [2016] FamCA 440
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CaseChat Overview and Summary
The court was required to determine the appropriate property settlement, considering the parties' contributions during their twelve-year marriage and the events of the ten years post-separation. Key legal issues included whether to make "notional add backs" of post-separation liabilities and how to assess contributions in light of the wife's extensive and ultimately unsuccessful litigation. The court also had to consider the wife's application for lump sum spousal maintenance.
Kent J reasoned that the wife was solely responsible for the economic consequences of her Supreme Court litigation and that these post-separation liabilities should be excluded from the notional pool for property settlement. The court assessed the parties' contributions, apportioning them 60/40 in the husband's favour, and then considered the section 75(2) factors. In relation to spousal maintenance, the court ordered a lump sum payment of $52,000 to the wife from the amount she owed the husband for his assessed costs of the Supreme Court proceedings.
The final orders provided for the husband to retain a significant portion of the parties' assets, including various business entities and trusts, while the wife was to transfer her shareholding in W Pty Ltd to the husband. The husband was to assume sole responsibility for a joint bank debt. The wife was to receive 45 per cent of any net sale proceeds exceeding $366,595 from the sale of certain units. The husband was to receive the security deposit held by the Supreme Court and remaining proceeds from the sale of B Street. The husband was also to receive 100 per cent of any splittable payment from the wife's superannuation fund. The wife's liability for the husband's costs of the Supreme Court proceedings was reduced, and she was awarded $52,000 as lump sum spousal maintenance.
Orders
Orders of the court
IT IS ORDERED:
Property Settlement
1.
The husband shall retain absolutely as the sole legal and beneficial owner to the exclusion of the wife all of the right, title and interest of either party in and to:
(a) E Pty Ltd in its own capacity and as trustee of the Hawkins Family Trust;
(b) the Hawkins Family Trust;
(c) any interest either in a personal capacity or via E Pty Ltd as trustee of the Hawkins Family Trust in each of:
(i) the P business conducted by F Unit Trust;
(ii) F Unit Trust;
(iii) W Pty Ltd in its own capacity and as trustee of F Unit Trust;
(iv) G Unit Trust;
(v) X Pty Ltd in its own capacity and as trustee of G Unit Trust.
2.
That the wife transfer to the husband all of her shareholding in W Pty Ltd with the husband to forward to the wife a form of transfer for such shareholding which the wife shall forthwith, upon receipt, sign and return to the husband.
3.
That the husband retain absolutely as the sole legal and beneficial owner to the exclusion of the wife any credit loan account balance or any other benefit standing to the wife’s credit in any of the entities referred to in paragraph 1 of these orders and the husband indemnify the wife and keep her indemnified in respect of any debit loan account or any other liability of the wife to any of the entities referred to in paragraph 1 of these orders PROVIDED ALWAYS that such indemnity does not include or extend to any liability of the wife of and incidental to orders made by the Supreme Court of Queensland in respect of the proceedings vide file number ….
4.
In the event that the husband via E Pty Ltd as trustee of the Hawkins Family Trust effects a sale of the units held in F Unit Trust and G Unit Trust so as to achieve net sale proceeds (after taxation and realisation costs referrable to such sale) in an amount in excess of $366,595 (“the excess amount”) the husband shall within fourteen (14) days of settlement of such sale, cause the wife to be paid an amount equal to 45 per cent of the excess amount.
5.
The husband shall assume sole responsibility for the joint liability of the parties with respect to the debt owing by the parties to the Y Bank of Country J and the husband shall indemnify the wife, and keep her indemnified, with respect to that liability.
6.
The husband shall receive and be entitled absolutely to the entitlement of the parties or either of them, and the wife relinquishes to the husband, all of the parties’ right, title and interest in and to:
(a) the security deposit held by the Supreme Court of Queensland on account of the parties or either of them in relation to the Supreme Court proceedings vide file number … or of the appeal proceedings relevant to those proceedings; and
(b) the remaining proceeds of sale of the property known as B Street held in the trust account of the solicitors for the husband;
and each party shall do all acts and things reasonably required, including by signing any documents, to give effect to this order.
7.
Pursuant to s 90MT(1)(b) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the interest held by the wife in The Hawkins Superannuation Fund, the husband shall be entitled to 100 per cent of the splittable payment and there shall be a corresponding reduction to the entitlement the wife would have received in The Hawkins Superannuation Fund but for this order. This order binds the trustees of The Hawkins Superannuation Fund and any subsequent trustee of The Hawkins Superannuation Fund or a successor fund.
8.
It is declared that as a consequence of these property settlement orders the wife’s liability to pay the husband his assessed costs of the Supreme Court proceedings vide file number … pursuant to orders made by the Supreme Court of Queensland is reduced from $202,742.66 to the amount of $131,874.66.
9.
The husband shall retain absolutely as the sole legal and beneficial owner to the exclusion of the wife all rights, title and interest in and to:
(a) The Hawkins Superannuation Fund;
(b) the Mr Hawkins Superannuation Fund;
(c) all other assets or financial resources including, but not limited to, bank accounts, motor vehicles, and furniture and chattels presently in the name, or possession or control of the husband;
except as is otherwise expressly provided for in these orders.
10.
The wife shall retain absolutely as the sole legal and beneficial owner to the exclusion of the husband all rights, title and interest in and to:
(a) the Ms Hawkins Superannuation Fund;
(b) her business supplying toner and cartridges;
(c) all other assets or financial resources including, but not limited to, bank accounts, motor vehicles, and furniture and chattels presently in the name, or possession or control of the wife;
except as is otherwise expressly provided for in these orders.
11.
Save and except as is otherwise expressly provided in these orders, each party respectively shall be solely responsible for any liability currently in the sole name of that party or for which that party is solely liable and each party shall indemnify the other and keep the other indemnified in respect of any such liability.
12.
Each party shall do all acts and things reasonably required including by the signing of any documents necessary to give effect to these orders, within seven (7) days of being requested to do so by the other party.
13.
Should either party fail to do all things and sign all documents within seven (7) days of request by the other party to do so then pursuant to s 106A of the Family Law Act 1975 (Cth) a Registrar of the Family Court of Australia, Brisbane, is appointed to sign or execute any document in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.
Spousal Maintenance
14.
Pursuant to ss 74, 77A and 80 of the Family Law Act 1975 (Cth) it is ordered that $52,000 of the remaining sum of $131,874.66 owing by the wife to the husband (as referred to in paragraph 8 of these orders) be settled upon the wife as and by way of lump sum spousal maintenance. This is an order to which s 77A applies and $52,000 is specified as the value attributable to the provision of maintenance for the wife for the purposes of s 77A(1)(b).
15.
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
NOTATION:
As a consequence of these property settlement orders and the order for spousal maintenance, the amount owing by the wife to the husband pursuant to orders made by the Supreme Court of Queensland in proceedings file number …, is reduced from $202,742.66 to a total of $79,874.66.
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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