FAMILY COURT OF AUSTRALIA
| INGLES & INGLES & ORS | [2019] FamCA 33 |
| FAMILY LAW – PROPERTY – Settlement in relation to marriage – Whether the interest of the husband in a trust is property or a financial resource – Where the husband is the appointor of the trust – Where the husband is a trustee and is within the specified range of beneficiaries – Where the husband is not the sole trustee – Where the legitimate interest of a third party arises – Where the trust is not a sham – Where the trust is not the alter-ego of the husband – Consideration given to whether the trustees hold the assets of the trust for the husband or for the husband and wife arising out of an express or constructive trust – Identification of the property of the parties available for division. |
| Family Law Act 1975 (Cth) ss 75(2), 79, 79(2), 79(4) |
| Anning v Anning (1907) 4 CLR 1049 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 Bevan & Bevan [2013] FamCAFC 116 Calverley v Green (1984) 155 CLR 242 Commissioner of State Taxation v Cyril Henschke Pty Ltd & Ors (2010) 242 CLR 508 Connell v Bond Corporation Pty Ltd (1992) 8 WAR 352 Giumelli v Giumelli (1999) 196 CLR 101 Goodwin v Goodwin Alpe (1991) FLC 92-192 Harris & Dewell & Anor [2018] FamCAFC 94 Harris & Harris (1991) FLC 92-254 Hewett v Court (1983) 149 CLR 639 Kennon v Spry (2008) 238 CLR 366 Muschinski v Dodds (1985) 160 CLR 583 Pierce & Pierce (1999) FLC 92-844 Pleash (Liquidator) v Tucker [2018] FCAFC 144 Reynolds and Reynolds [1990] FamCA 50 (27 April 1990) Rosati v Rosati (1998) FLC 92-804 Stanford & Stanford (2012) 247 CLR 108 Stephens & Stephens (2007) FLC 93-336 United Builders Pty Ltd v Mutual Acceptance Ltd (1980) 144 CLR 673 |
| APPLICANT: | Ms Ingles |
| 1st RESPONDENT: | Mr Ingles |
| 2nd RESPONDENT: | B Pty Ltd |
| 3rd RESPONDENT: | Ms Howard |
| FILE NUMBER: | DNC | 270 | of | 2017 |
| DATE DELIVERED: | 31 January 2019 |
| PLACE DELIVERED: | Darwin |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 13 - 17 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Pyke QC |
| SOLICITOR FOR THE APPLICANT: | Norman Waterhouse Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Crooke |
| SOLICITOR FOR THE 1ST RESPONDENT: | Murdoch Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Bonig |
| SOLICITOR FOR THE 2ND RESPONDENT: | Finlaysons |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Bonig |
| SOLICITOR FOR THE 3RD RESPONDENT: | Finlaysons |
Orders
That in full and final settlement of all claims either the husband or the wife may have against the other for settlement of property either in the past, present or the future pursuant to Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”):-
(a)Within ninety (90) days of the date of these orders the husband pay or cause to be paid to the wife’s solicitors for and on her behalf the sum of SEVEN…
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- AGLC
- Ingles and Ingles and Ors [2019] FamCA 33
- Case
- [2019] FamCA 33
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of a full and final settlement of all property claims between the parties pursuant to Part VII of the *Family Law Act 1975* (Cth). This involved specifying the monetary sum to be paid by the husband to the wife, the allocation of a base amount from the husband's superannuation to the wife, and the distribution of various other assets and liabilities between them. The orders also addressed the wife's continued occupation of a property and the consequences of any default by the husband in meeting his payment obligations.
The court's reasoning is reflected in the detailed orders made, which provide for a comprehensive division of the parties' financial interests. These orders include specific provisions for the payment of a settlement sum, the splitting of superannuation entitlements in accordance with the *Family Law (Superannuation) Regulations 2001* (Cth), and the vesting of various other assets in each party absolutely. The orders also establish clear responsibilities for existing and future debts and liabilities, and include mechanisms for enforcement and the execution of necessary documents by a Registrar in the event of a party's refusal or neglect. The court further stipulated conditions for the wife's occupation of a property and outlined a detailed process for the sale of assets and the winding up of a company in the event of the husband's default on the settlement sum.
Orders
Orders of the court
1.
That in full and final settlement of all claims either the husband or the wife may have against the other for settlement of property either in the past, present or the future pursuant to Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”):-
(a) Within ninety (90) days of the date of these orders the husband pay or cause to be paid to the wife’s solicitors for and on her behalf the sum of SEVEN HUNDRED & TWENTY THOUSAND FOUR HUNDRED AND NINETY SIX DOLLARS ($720,496) (“the settlement sum”);
(b) That as required by s 90MT(4) of the Act a base amount of TWO HUNDRED THOUSAND DOLLARS ($200,000) is to be allocated to the wife out of the husband’s entitlement in K Superannuation Fund (hereinafter referred to as “the Fund”);
(c) That pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s interest in the Fund:-
(i) The Trustee shall pay to the wife’s nominated superannuation fund the entitlement calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount allocated in paragraph (1)(b) hereof;
(ii) The Trustee shall make a corresponding reduction in the interest that the husband would have had in the Fund but for this order.
(iii) This order has effect from the operative time.
(iv) That the operative time for these orders is four (4) business days from the date of service of the sealed order on the Trustee of the Fund.
(v) That these orders bind the Trustee of the Fund to observe the Trustee obligations as set out under the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth), the Trustee having been afforded procedural fairness in accordance with the Family Law Rules 2004 (Cth).
(vi) That the husband and the wife do all things necessary including but not limited to exercising the wife’s request pursuant to Regulation 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the rollover or transfer of the transferable benefit in the Fund to a fund of the wife’s choosing and in accordance with Regulation 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
(d) That other than as provided in these orders hereafter the property in the following shall vest in the wife absolutely, free of any further claim, demand or right or entitlement of the husband:-
(i) The wife’s Motor vehicle 1;
(ii) The furniture, furnishings and household contents of the property at C Street, Suburb D, Northern Territory …;
(iii) The wife’s superannuation entitlements including the amount from the splitting order provided herein;
(iv) The wife’s separate savings and investments including but not limited to the content of her J Credit Union accounts;
(v) Any personal property or financial resources of the wife, in the wife’s name or possession or otherwise specified herein.
(e) That other than as provided in these orders hereafter the property in the following shall vest in the husband absolutely, free of any further claim, demand or right or entitlement of the wife:-
(i) The husband’s Motor vehicle 2;
(ii) The husband’s Motor vehicle 3 and Motor vehicle 4;
(iii) The husband’s shareholding and interest in B Pty Ltd after the payment of the settlement sum and any necessary sale as provided for at paragraphs 1(a) and 1(k) herein;
(iv) The husband’s interest in the Ingles Family Trust other than as provided for in these orders;
(v) The husband’s superannuation entitlements after the splitting order provided for herein has taken effect;
(vi) The husband’s separate savings and investments, including but not limited to the contents of his NAB accounts;
(vii) Any other personal property or financial resources of the husband, in the husband’s name or possession or otherwise specified herein.
(f) That hereafter the wife shall be solely responsible for and shall indemnify the husband and keep him forever indemnified with respect to any debts or liabilities in her sole name whether past, present or future;
(g) That hereafter the husband shall be solely responsible for and shall indemnify the wife and keep her forever indemnified with respect to any debts or liabilities in his sole name whether past, present or future;
(h) That the husband shall be solely responsible for and shall indemnify the wife in respect of any claim by B Pty Ltd in respect of outstanding rental arising from the wife’s occupation of the property situate at C Street, Suburb D, Northern Territory … (“the C Street property”);
(i) That each party shall do all such acts and things and sign all such documents as may be necessary to give effect to the terms of this order;
(j) That the wife shall be entitled to remain in the C Street property until such time as she has received the entirety of the settlement sum together with default interest (if any) PROVIDED THAT:-
(i) upon the wife receiving the settlement sum she shall vacate the C Street property within seven (7) days thereafter and leave the same in good order and repair;
(ii) she will pay to B Pty Ltd the sum of THREE HUNDRED AND FIFTY DOLLARS ($350) per week during her period of occupation;
(k) That in the event that the husband shall default on the payment of the settlement sum either in whole or in part THEN:-
(i) B Pty Ltd shall do all such acts and things and execute all such documents as shall be necessary to:-
1. Call in any loan owed to it by the Ingles Family Trust;
2. Obtain the release of any of its directors past and present from their guarantees with respect to the borrowings of the Ingles Family Trust from the National Australia Bank, such borrowings secured by way of mortgage security over the C Street property and do obtain the discharge of the C Street property from the mortgage security and do thereafter cause the C Street property to be sold upon such terms and conditions as the parties may agree and in default of agreement as they may be ordered by the Court;
3. Cause the company to be wound up and do thereafter cause such monies as may be due and owing to the husband arising out of his shareholding to be paid firstly to the wife in such sum as may be necessary to satisfy her entitlement pursuant to paragraph 1(a) hereof and the balance if any to the husband; and
4. The husband and Ms Howard as Trustees of the Ingles Family Trust shall do all things as may be necessary to obtain the release of the directors past or present of B Pty Ltd from their guarantees and to secure the discharge of the mortgage security over the C Street property.
5. That in the event there shall be insufficient funds to satisfy the settlement sum payable to the wife following the sale of the assets in B Pty Ltd THEN the husband shall do all such acts as may be necessary either in concert with Ms Howard as a co-trustee of the Ingles Family Trust or in circumstances where the Trustees are not able to agree THEN the husband shall exercise his power of appointment such that [Ms Howard] shall no longer be a Trustee and thereafter the husband shall cause such of the assets of the [Ingles] Family Trust to be sold as may be necessary to enable the husband to either by way of drawings or distributions to discharge the wife’s settlement sum or so much of the said sum as shall remain outstanding together with default interest as and from the date of default calculated pursuant to the Family Law Regulations PROVIDED THAT the husband is not required to seek distributions and/or drawings in excess of FIVE HUNDRED AND THIRTY ONE THOUSAND SEVEN HUNDRED AND SIXTY FIVE DOLLARS ($531,765).
(l) If the husband or the wife shall refuse or neglect to execute any document necessary to give effect to the terms hereof within seven (7) days after the same shall have been tendered to him or her for that purpose THEN and in such case:-
(i) A Registrar of the Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute any such document on behalf of either party hereto and if in his or her opinion it shall be necessary so to do to settle the same and do all such other acts and things and execute all such other documents as shall be necessary to give full force and effect hereto and shall execute and do the same accordingly.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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