HERRON & HERRON

[2014] FamCA 1221

FAMILY COURT OF AUSTRALIA

HERRON & HERRON [2014] FamCA 1221

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – orders by consent

Family Law Act 1975 (Cth)

APPLICANT: Mr Herron

RESPONDENT: Ms Herron

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7176 of 2012

DATE DELIVERED: 3 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 3 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethlean

SOLICITOR FOR THE APPLICANT: Richmond & Bennison

THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: L N Christie & Co

Orders

BY CONSENT IT IS ORDERED:

1. That the Final Orders dated 10 June 2014 be discharged.

2. That the parties, on or before 10 December 2014, shall do all acts and things necessary to transfer to the wife absolutely at her expense:

   (i)       all chattels identified in the B Valuers valuation as being in her possession;

   (ii)the sum of $225,025 from the Commonwealth Bank Term deposit in the joint names (“the first payment”)(BSB … Acct # … which account is not a trust account); and

   (iii)the parties jointly owned shares in Telstra and Wesfarmers having a current estimated value of $35,084 and $9,690 respectively.

3. Contemporaneously with order 2., the wife shall do all acts and things to, at the expense of the husband (and as may be applicable):

   (i)resign as an officer of any company in which she has an interest, including but not limited to C Pty Ltd in favour of the husband or his nominee;

   (ii)resign as an appointor or trustee of any trust including but not limited to the Herron Family Trust in favour of the husband or his nominee;

   (iii)transfer to the Husband or his nominee any share in any company including but not limited to C Pty Ltd;

   (iv)assign for the benefit of the husband any interest the wife has in any entity referred to in this paragraph including any asset or liability loan account in any of the entities referred to in this paragraph of whatsoever nature;

   (v)transfer to the husband absolutely all chattels identified in the B Valuers valuation as being in his possession which for the avoidance of doubt includes the motor vehicle 1.

4. That on or before 17 December 2014 the husband shall pay to the wife the sum of $640,000 ("the second payment").

5. That contemporaneously with the second payment the wife will transfer to the husband absolutely all her right title and interest in the properties known as and situate at D Street, Suburb C ("the properties") free of all encumbrances.

6. That pending the second payment:

   (i)       neither party shall encumber the properties;

   (ii)the husband shall have the sole and uninterrupted enjoyment of the properties;

   (iii)the husband shall pay all rates and outgoings on the properties as and when they fall due.

7. That, on or before 17 December 2014, the wife do all acts and things necessary to transfer any interest she may have in the Herron Family self-managed Superannuation Fund into the husband’s sole name at his expense.

8. That, on or before 8 December 2014, the wife shall:

   (a)      Obtain a stamp duty exemption on the respective Transfers of Land for the properties;

   (b)      Provide for inspection of the Certificates of Title for the properties to an officer of the Commonwealth Bank of Australia, as advised by the husband’s solicitor, and as required by the bank

9. That the parties shall, save as provided for in these orders, and save for the purpose of enforcing any money due under these or any subsequent orders, retain"

   (a)      the husband

   (i)       all interest in C Pty Ltd

   (ii)      all interest in E Pty Ltd;

   (iii)     all interest in the properties;

   (iv)all interest in any bank account in his name or in the names of the entities at (i) or (ii) hereof;

   (v)all interest in any superannuation fund in his name other than is provided for in these orders;

   (vi)     all chattels in his possession;

   (vii)    all motor vehicles in his possession;

   (viii)responsibility for his taxation obligations and those of the entities at (i) and (ii) together with any taxation liability arising from any distribution or dividend paid to the wife from any of the aforesaid entities;

   (ix)     responsibility for his legal fees;

   (x)responsibility for all credit cards in his name or in the name of any of the entities referred to herein.

   (b)      the wife

   (i)       all interest in any bank account in her name;

   (ii)      responsibility for all credit cards in her name;

   (iii)     responsibility for all her legal fees;

   (iv)all interest in any superannuation fund in her name other than as provided for in these orders;

   (v)      all chattels in her possession and those at Schedule 2.

10. That the husband is solely liable for and hereby does indemnify the wife against any liability she has or may in the future incur arising out of her involvement in the entities referred to in order 3. hereof of whatsoever nature and kind, including any taxation liabilities and including any liabilities that may arise from the sale of any of the properties referred to herein.

11. That the husband, in addition to any indemnity provided in these orders, shall indemnify the wife against any liability of any kind whatsoever, past, present, and future in respect of the Herron Family self-managed Superannuation Fund.

12. That save as provided for in these orders:

    (i)       all joint tenancies be and are hereby severed;

    (ii)any insurance policy shall ensure for the benefit of the party named thereon;

    (iii)all joint accounts in the name of the parties shall be closed and any balance divided equally, including the interest on or the balance of the Commonwealth Bank Term Deposit (as referred to in order 2.ii) after the payment in order 2.ii).

13. In the event the husband does not make the payments required to be made pursuant to these orders to her then the wife shall be entitled to sell as trustee the properties and pay therefrom:

    (i)       first all selling costs;

    (ii)second, the amounts due to her together with interest under the Family Law Rules from the date of default to the date the wife receives the moneys;

    (iii)     the balance to the husband.

14. That all extant applications otherwise be dismissed.

IT IS DIRECTED:

1. That the Minute of Consent Orders remain on the Court file.

IT IS CERTIFIED:

1. That pursuant to Rule 19.50 of the Family Law Rules it was reasonable to brief Counsel.

THE COURT NOTES:

A.That the parties intend these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.

B.That the wife warrants today that, by reason of agreeing to these orders (as varied from the former final orders dated 10 June 2014), she does not intend to bring any future spousal maintenance application.

C.That the wife warrants today that she has signed the Transfer of Land documents, will obtain the stamp duty exemption, and has in her possession the Certificates of Title.

D.That order 4. herein is subject to the procedures of the husband’s bank or lending institution in providing finance for same, specifically in according with the scheduled settlement date of 17 December 2014.

E.The husband warrants today that he is able to settle the second payment on 17 December 2014.

SCHEDULE 2

•          Handmade cupboard

•          Large painted shell (cracked from fall)

•          1 x picture "birds"

•          any photos the husband can identify of the wife's family

IT IS NOTED that publication of this judgment by this Court under the pseudonym Herron & Herron has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7176 of 2012

Mr Herron

Applicant

And

Ms Herron

Respondent

REASONS

1. These Reasons for Judgment were delivered orally.

2. In the matter of Herron, I am asked to discharge previous orders made by Cronin J on 10 June 2014 and to this day make final property orders by consent. 

3. This matter has had a long history before the Court.  The parties had entered into what were final orders on 10 June 2014 by consent.  Those orders were made after the parties had had the benefit of a mediation with the Honourable Mr Peter Young QC, where they had an in-principle agreement to adjust their interests.  After that mediation the parties attended Court and orders were made, I think, in a Judicial Duty List on 10 June. 

4. The matter has returned to Court and has been listed, I think, on three occasions before me, as the husband has sought to enforce various parts of the orders, particularly orders in relation to the adjustment and management of the parties’ superannuation interests. 

5. The husband is represented by Mr Lethlean of Counsel.  The wife is self-represented and, because of her position as a litigant in person, I have afforded her the opportunity, on each occasion the matter is before me, to attend upon the duty lawyer to obtain advice in relation to her position. 

6. I am told by both counsel for the husband and the wife that they join now in seeking final property orders.  I am told that they have reached what they describe as a commercial adjustment of their matter.

7. What I observe from the orders is that the wife will be receiving cash payments by virtue of paragraph 2 and paragraph 4 of the orders.  The wife would say that her entitlements under the orders are something in the order of $850,000.  The husband would say that, in fact, the wife will receive payments of approximately $1 million.  The husband will retain properties which will be subject to significant mortgage liabilities.  He will also retain his interests in entities that operate a business. The parties say to me that the orders are just and equitable.

8. Having heard submissions from counsel for the husband and having heard from the wife, I am satisfied that the orders are just and equitable and I will make orders in the terms of the consent order that is signed by the parties this day.  I will mark the minute with the letter “A”.  It will remain on the Court file and I would ask that the solicitor for the husband engross and file the minute at Court within seven days.

RECORDED  :   NOT TRANSCRIBED

1. The orders conclude these proceedings.  They dismiss all current applications.  There are strict timetables to be complied with between now and about 17 December.  It is imperative that all parties do things necessary to bring their financial relationship to a conclusion.

RECORDED  :  NOT TRANSCRIBED

1. I will make a further direction that documents produced under subpoena be returned to the relevant agencies who have produced those documents.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 3 December 2014.

Associate: 

Date:  3 December 2014