HKL & HCB - [2002] FMCAfam 257

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HKL & HCB

[2002] FMCAfam 257

FAMILY LAW — Property settlement – inheritances – modest asset pool – child support – inadequate grounds for variation/departure – contact – minor variation – spousal maintenance.

Applicant:

HKL

Respondent:

HCB

File No:

(P)MLM 2595 of 2001

Delivered on:

23 August 2002

Delivered at:

Melbourne

Hearing s:

27 & 28 February 2002

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Ms Treyvaud

Solicitors for the Applicant:

Holt & Macdonald Solicitors

Counsel for the Respondent:

Mr Pinner

Solicitors for the Respondent:

Mackinnon Jacobs Horton & Iriving Pty

ORDERS

(1)The wife do pay to the husband the sum of $23,500.00 within 60 days from the date of the making of the within orders.
(2)Upon receipt of the said sum of $23,500.00 referred to in (1) above, the husband do forthwith do transfer and assign the wife all his right, title and interest in the former matrimonial home.
(3)The husband do forthwith transfer and assign to the wife all his share and interest (if any) in the following:
(i)the wife’s motor vehicle;
(ii)the furniture, chattels and effects presently in the wife’s possession;
(iii)all moneys standing to the credit of the wife in any account in any bank, building society or other financial institution; and
(iv)the wife’s superannuation entitlements.

(4)The wife do forthwith transfer and assign to the husband all her share and interest (if any) in the following:
(i)P Services Pty Ltd, including any business conducted by the said company (including the goodwill, plant and equipment, trading stock, work in progress, bank accounts, debtors, intellectual property and all other assets whatsoever of the said business);
(ii)the husband’s motor vehicle;
(iii)the furniture, chattels and effects presently in the husband’s possession;
(iv)all moneys standing to the credit of the husband in any account in any bank, building society or other financial institution; and
(v)the husband’s superannuation entitlements.

(5)The wife do forthwith:
(i)transfer to the husband, or to his nominee, her shareholding (if any) in P Services Pty Ltd;
(ii)resign any office she may hold in the said company (including, but not limited to, the office of director of the said company); and
(iii)transfer and assign to the husband the whole of her share and interest in any loan account or indebtedness;
(iv)due or owing by her to the said company; or
(v)due or owing to her by the said company.

(6)The husband do indemnify the wife and keep her indemnified from all debts, liabilities and obligations of the wife relating to or arising out of:
(i)P Services Pty Ltd;
(ii)the business formerly known as P Services;
(iii)any security, charge, promise, personal guarantee or undertaking given by the wife to any bank, building society or other financial institution or commercial entity in relation to the said company and/or the said business;
(iv)the property dealings, loans, undertakings, business or affairs of the said company or the said business, including all taxation liabilities or duties (including income tax, capital gains tax and stamp duty and all…

Details

AGLC: HKL & HCB [2002] FMCAfam 257
Case: [2002] FMCAfam 257
Decision Date: 23 August 2002

CaseChat Overview and Summary

The case of HKL & HCB was heard in the Family Court of Australia, involving a dispute between the husband and wife regarding their financial arrangements and property division post-divorce. The central issue was the distribution of assets and liabilities, including shares in a family business, personal vehicles, household items, bank accounts, and superannuation entitlements. The court was also tasked with resolving indemnification claims related to the former matrimonial home and the family business.

The court meticulously reviewed the submissions and evidence presented by both parties. It assessed the contributions of each spouse to the family assets, the business, and their respective financial positions. The court considered the principles of fairness and equality in dividing the assets and liabilities, ensuring that each party was indemnified from certain obligations. After thorough deliberation, the court ordered a specific payment from the wife to the husband and detailed the transfer of various assets and liabilities between the parties. It also addressed indemnification claims to protect each party from certain financial risks associated with the family business and the former matrimonial home.

In its orders, the court mandated the wife to pay a sum of $23,500 to the husband within 60 days. It then directed the transfer of various assets and liabilities between the parties, including shares in a business, personal vehicles, household items, bank accounts, and superannuation entitlements. Additionally, the court required both parties to indemnify each other from specific debts and liabilities, including those related to the family business and the former matrimonial home. The court also dismissed certain applications filed by the parties during the proceedings.

The final orders of the court provided a comprehensive division of assets and liabilities, ensuring both parties were adequately protected from specific financial risks. The orders also addressed indemnification claims and directed the payment of a specific sum by the wife to the husband. This decision provided clarity and finality to the financial arrangements between the parties post-divorce.

Orders

Orders of the court

(1) The wife do pay to the husband the sum of $23,500.00 within 60 days from the date of the making of the within orders.

(2) Upon receipt of the said sum of $23,500.00 referred to in (1) above, the husband do forthwith do transfer and assign the wife all his right, title and interest in the former matrimonial home.

(3) The husband do forthwith transfer and assign to the wife all his share and interest (if any) in the following:

(i) the wife’s motor vehicle;

(ii) the furniture, chattels and effects presently in the wife’s possession;

(iii) all moneys standing to the credit of the wife in any account in any bank, building society or other financial institution; and

(iv) the wife’s superannuation entitlements.

(4) The wife do forthwith transfer and assign to the husband all her share and interest (if any) in the following:

(i) P Services Pty Ltd, including any business conducted by the said company (including the goodwill, plant and equipment, trading stock, work in progress, bank accounts, debtors, intellectual property and all other assets whatsoever of the said business);

(ii) the husband’s motor vehicle;

(iii) the furniture, chattels and effects presently in the husband’s possession;

(iv) all moneys standing to the credit of the husband in any account in any bank, building society or other financial institution; and

(v) the husband’s superannuation entitlements.

(5) The wife do forthwith:

(i) transfer to the husband, or to his nominee, her shareholding (if any) in P Services Pty Ltd;

(ii) resign any office she may hold in the said company (including, but not limited to, the office of director of the said company); and

(iii) transfer and assign to the husband the whole of her share and interest in any loan account or indebtedness;

(iv) due or owing by her to the said company; or

(v) due or owing to her by the said company.

(6) The husband do indemnify the wife and keep her indemnified from all debts, liabilities and obligations of the wife relating to or arising out of:

(i) P Services Pty Ltd;

(ii) the business formerly known as P Services;

(iii) any security, charge, promise, personal guarantee or undertaking given by the wife to any bank, building society or other financial institution or commercial entity in relation to the said company and/or the said business;

(iv) the property dealings, loans, undertakings, business or affairs of the said company or the said business, including all taxation liabilities or duties (including income tax, capital gains tax and stamp duty and all penalties and interest not yet paid) assessed or hereafter assessed against the wife in respect of income (if any) derived by the wife from, or allocated to the wife by, the said company or the said business;

(v) any loan account or indebtedness due or owing by the wife to the said company or the said business;

(vi) the creditors of the said company and the said business;

(vii) all charges or other encumbrances affecting the plant and equipment or other property of the said company and/or the said business,

and from all actions, proceedings, costs, claims and expenses in respect thereof.

(7) The wife do indemnify and keep indemnified the husband from all debts, liabilities and obligations of the husband relating to or arising out of the mortgage to the Commonwealth Bank currently encumbering the former matrimonial home, and from all actions, proceedings, costs, claims and expenses in respect thereof.

(8) The wife’s form 63 application filed 17 December 2001, the wife’s further amended application filed 21 February 2002, the husband’s amended response filed 22 February 2002 and the husband’s form 63 application filed 27 February 2002 otherwise be dismissed.

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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