Kent and Harper and Anor

[2014] FamCA 598

FAMILY COURT OF AUSTRALIA

KENT & HARPER AND ANOR [2014] FamCA 598

FAMILY LAW – Section 44(6) – Consent orders binding trustee of a discretionary trust.

Family Law Act 1975 (Cth)

APPLICANT: Mr Kent

1^ST RESPONDENT: Ms Harper

2^nd RESPONDENT: B Pty Ltd (Acn …) as Trustee of the B Trust

FILE NUMBER: MLC 4664 of 2014

DATE DELIVERED: 3 June 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Sageman

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyer

COUNSEL FOR THE 1^ST RESPONDENT: Mr Sweeney

SOLICITOR FOR THE 1^ST

RESPONDENT:

Mills Oakley Lawyers

COUNSEL FOR THE 2^ND RESPONDENT: Mr Evans

SOLICITOR FOR THE 2^ND

RESPONDENT:

Moore Stephens Melbourne

Orders

1. That leave is granted pursuant to s 44(6) to the parties to seek orders.

2. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

3. That the solicitor for the applicant engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kent & Harper 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 4664 of 2014

Mr Kent

Applicant

And

Ms Harper

1^st Respondent

And

B Ptyltd (Acn …) as Trustee of the B Trust

2^nd Respondent

REASONS FOR JUDGMENT

1. This is a most unusual situation in that one of the parties to the proceeding in the form of a second respondent is the corporate entity which is the trustee of a trust which is vital to the carrying out of the settlement as between the parties.  The settlement with which the Court is concerned only relates to the property because the other ramifications of the ending of the relationship between the parties is encompassed in the financial agreement and the binding child support agreement.  The significance, obviously, of the corporate trustee being here is that it is integral to the carrying out of that order and it is somewhat unusual to have both directors of the corporate entity effectively binding themselves to ensure that a Court order is followed where, indeed, the bulk of the vehicle is a trust.

2. I am conscious of the fact that it is difficult to bind trustees when they have discretionary powers but it seems, in this case, that everybody is in heated agreement it needs to occur.  The Court’s function under section 90 is only to make orders if it is satisfied that it is just and equitable.  Having regard to what I have been told by Mr Sweeney about the underlying value of things and how the structures occurs, it seems to me this is well within the range of probable outcomes of a proceeding of this nature and I am satisfied, in those circumstances, that it is just and equitable. 

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 June 2014.

Associate: 

Date:  25 July 2014