Laukkanen & Laukkanen (No 2)
[2023] FedCFamC1F 1123
•22 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Laukkanen & Laukkanen (No 2) [2023] FedCFamC1F 1123
File number(s): CAC 409 of 2022 Judgment of: GILL J Date of judgment: 22 December 2023 Catchwords: FAMILY LAW – PROPERTY – s 79(1)(d)(i) – Settlement of property upon adult children of the relationship – Necessity for claim to arise out of the matrimonial relationship – Ongoing responsibilities toward the adult children – Extraordinary circumstances Legislation: Family Law Act 1975 (Cth) – s 79(1)(d)(i) Cases cited: Dougherty v Dougherty (1987) 163 CLR 278 Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 18 December 2023 Place: Canberra Solicitor for the Applicant: Ms White, Keypoint Law Solicitor for the First Respondent: Ms Tighe, Dobinson Davey Clifford Simpson Solicitor for the Second Respondent: Ms McGuinness, Robinson McGuinness ORDERS
CAC 409 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LAUKKANEN
Applicant
AND: MS LAUKKANEN
First Respondent
MS B LAUKKANEN
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
22 DECEMBER 2023
THE COURT ORDERS THAT:
1.Interim and Final Orders and notations are made by consent in accordance with Exhibit C1.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
INTRODUCTION
The parties to these proceedings are the husband and wife, who have been pursuing property settlement. Joined to the proceedings, by order of 20 June 2023, is one of their adult children, Ms B Laukkanen, who initially pursued an unparticularised claim that she, and her younger sibling Mx C (also an adult), were the beneficial owners of matrimonial property that was held on trust for them.
Since the second respondent joined the proceedings in June 2023, the parties have sought sequential adjournments, on the basis that they were engaged in discussions designed to resolve all outstanding proceedings. These were conducted against a background set out in the affidavit of Ms B Laukkanen of 2 August 2023 that identified that Mx C suffers from particular, life threatening, mental health vulnerabilities, and that Ms B Laukkanen had been tasked by the husband and wife with the care of Mx C. Relevant aspects of these circumstances will be set out further below.
On 18 December 2023 the parties provided terms to the court to resolve all outstanding matters. Those terms were comprised of two elements, being a discontinuance and dismissal of the Ms B Laukkanen claim, on the basis of a deed of settlement with the husband, and then terms as between the husband and wife.
Those terms between the husband and wife are complex, but in general provide for a 60-40 split of the parties’ property (excluding a property in Suburb E, Region D) in favour of the husband, reflective of superior contributions made by the husband through a bequest received by the husband during the marriage. They however contain (consistent with the deed of settlement) terms for the settlement of the Suburb E property jointly upon Ms B Laukkanen and upon a trustee for Mx C (the settlement).
The husband’s and wife’s positions as to this aspect of the settlement are set out in notations and recitals set out further below in the judgment. In short, they each assert that the settlement will provide housing security for Ms B Laukkanen and Mx C, with the husband also describing that the settlement is an advance of Ms B Laukkanen’s and Mx C’s inheritance from his estate.
It was uncontroversial between the husband, wife and Ms B Laukkanen that, although the orders benefit Mx C, the proceedings were conducted without the joinder of Mx C out of fear that the knowledge of, or involvement in the proceedings would have a seriously detrimental impact upon Mx C. It may be observed that the orders confer a benefit upon Mx C, with no associated detriment.
The aspects of the orders that provide for the settlement upon Ms B Laukkanen and Mx C raised a question as to the source of power for the court to make such an order.
SETTLEMENT OF PROPERTY UPON A CHILD OF THE MARRIAGE
The parties contend that the settlement of property upon Ms B Laukkanen and Mx C is the product of the exercise of jurisdiction pursuant to s 79(1)(d)(i) of the Family Law Act 1975 (Cth) (“the Act”), which is relevantly in the following terms:
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
... including ...
(d) an order requiring:
(i) either or both of the parties to the marriage; or
…
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
This is a provision of infrequent use. It was, however, dealt with by the High Court in Dougherty v Dougherty (1987) 163 CLR 278. The various judgments of the court require careful analysis in order to determine whether these particular orders should be made.
In summary the plurality marked out the power as follows:
The Family Court is empowered to make an order under that section where it is satisfied that in all the circumstances it is just and equitable to do so, but the circumstances must be such that the claim arises out of, or has a sufficient connexion with, the marriage relationship. If s.79 is to be a law with respect to marriage, and for that reason to be within power, it must be because of the connexion between the jurisdiction which it confers and the relationship of marriage: see Reg. v. Lambert; Ex parte Plummer. The jurisdiction which it confers is a jurisdiction to alter property interests. Thus, the rights and duties which the Family Court may validly create or define under the section are confined to those which have their basis in the marital relationship.
Reliant as the provision is upon the marriage power, the “relationship between husband and wife must provide the basis for the making of any order under s.79.”[1] The plurality in Dougherty observed that this connection is not readily charted, noting that it “is not easy to identify the circumstances when a claim by or on behalf of a child of the marriage to an order under s.79 will arise out of the marital relationship.” They further observed at p 287 that the “love and affection that ordinarily binds parents and child together in a family unit and therefore underlies any transaction that may occur between them does not of itself relate the transaction to the relationship of marriage that may obtain between the parents.” They noted at p288 that the “fact of relationship of parent and child may not suffice” and that the circumstances necessary to support a child’s claim would be “exceptional”.
[1] Dougherty per Mason CJ, Wilson and Dawson JJ at p 286.
The example, noted to be non-exhaustive, identified by the plurality as potentially attracting the operation of the provision by sufficient connection to the matrimonial relationship, was where there are “circumstances importing an unfulfilled obligation on the part of the parties to the marriage or either of them which arise during the infancy or dependency of the claimant.”
In examining the foundation for a claim under the provision Brennan J in a separate judgment observed:
The silence of s.79(1) and (2) as to the grounds on which an order might be made and the specification by sub-s.(4) of the matters to be taken into account imply that the foundation for a claim under s.79(1) is no more than that the relationship between or among the parties to the marriage and the children of the marriage. The power to make an order under s.79 is not dependent on the existence of an obligation owed to the applicant at law or in equity; the order is made not in satisfaction of a cause of action but in the exercise of a discretion. A contractual or equitable obligation would not merge in and be extinguished by a discretionary order made under s.79. At most the making of such an order could alter the circumstances in which an obligation might otherwise have arisen or might otherwise have been continued (for example, an obligation to maintain an infant child or a physically or mentally handicapped child).
Brennan J’s conclusion was that:
The implication from the text of s.79 is that the foundation for a claim and therefore the ground or reason for making an order under the section must be found in the relationship between or among the parties to a marriage and the children of the marriage.
In considering the validity of the provision, at p295 Brennan J noted that:
A proceeding which finds support in the marriage power must not only arise out of the relationship of the husband and wife; the subject if the proceeding must also be central to or commonly incidental to the institution of marriage.
In finding that the provision was a law with respect to marriage, he accepted that:
when property is settled on or transferred to an adult child of a marriage by the husband and wife or by one of them, the customs of our community regard the transaction as a common incident of marriage unless the settlement or transfer is in satisfaction of some legal or equitable right which has arisen from a relationship which stands outside of the marital relationship.
That acceptance is of use not only in characterising the law as in respect of marriage, but also in the implications that it carries for considering whether this settlement of property has the requisite connection to the marriage.
Earlier in his judgment at p294, in examining potential links between an application by a child of the marriage and the marital relationship, Brennan J identified that:
an infant child’s need of nurture and protection imposes a duty on, and thus affects the relationship of, husband and wife and that no duty of nurture and protection is owed to an adult child who is not mentally or physically handicapped and who is or is able to be self-supporting. But the relationship between the parents of a child remains affected by their common parenthood after the duty of nurture and protection has ceased. Once there is a child of a marriage, the relationship of a husband and wife is no longer bilateral; they have founded a family and their relationship includes their child...The relationship of husband and wife is not fully described, and therefore is not accurately described, if the description ignores the children of the marriage, if any.
It may be observed that, to the plurality's identification of the requirement that the relationship of the husband and wife provides the basis for the order, Brennan J added illustration of how the settlement might be considered to be connected to the marriage, given the nature of the interrelationship between the parties to the relationship and their children.
With typical clarity Gaudron J firstly identified that the power in relation to the settlement of property upon the children to the marriage is confined in the same manner that the power to adjust property between the parties to the marriage is confined to matters arising out of the marital relationship.
Her Honour, placing flesh upon this requirement, then moved to a description of the characteristics of the relationships between husband and wife and children of the marriage that render a claim for property settlement as arising out of the marital relationship. She observed that:
the obligation to provide nurture and protection is but an aspect of the relationship between the parties to a marriage and the children of that marriage. This relationship comprises a complex of rights, duties, obligations and responsibilities, which Murphy J. in Reg. v. Demack; Ex parte Plummer (47) enunciated as including “custody, access, guardianship, maintenance, advancement and security”. The nature of the rights, duties, obligations and responsibilities entailed in this relationship, and the manner of their enforcement and discharge, will generally vary according to the age and abilities of the children of the marriage such that it may fairly be said that it will only be in exceptional circumstances that the marital relationship will support a claim by or on behalf of an adult independent child of the marriage as against the parties to the marriage.
Her Honour then described the fundamental obligation of the parties to the marriage to accept responsibility for the long term welfare of the children of the marriage, and that whilst this is typically discharged during or shortly after a child reaches adulthood, it is a responsibility that may endure beyond then. Further, and relevantly to this particular case, her Honour observed that whilst such obligations are usually discharged by the parties to the marriage, such is not always the case:
it may be accepted that in some family units, some of the obligations of the parties to a marriage in relation to the children of the marriage are, to some extent discharged by others, including other (usually older) children of the marriage.
Importantly to this case her honour observed:
Without being exhaustive of the circumstances which will confer upon a claim by a child of the marriage the relevant nexus with the marital relationship, it seems to me that claims advanced by reference to an unmet obligation of parties to a marriage to provide for the long term welfare of a claimant child of the marriage, or claims made by reference to the obligation to provide for the long term welfare of other children of the marriage when that obligation has devolved upon the claimant child of the marriage, would constitute claims which can be said to arise out of, or have the relevant nexus with, the marital relationship.
Accordingly, in summary, to exercise the power to settle property upon children of the relationship, it is necessary that the claim and settlement is grounded in the marital relationship. Although for a claim by an adult child to fall within the power the circumstances would be exceptional, such circumstances are themselves derived from the nature of the relationship between the parties to the marriage and the child. The exceptional circumstances may arise from ongoing responsibilities for the long term welfare, including the advancement and security, of the adult children, or in recognition of the devolving of such responsibilities upon an adult child in respect of another adult child of the relationship.
THE CIRCUMSTANCES OF THIS PROPOSED SETTLEMENT
Apparently uncontroversial aspects of the circumstances of the proposed settlement are set out in the affidavit of Ms B Laukkanen of 2 August 2023. Ms B Laukkanen, who is 28 years of age, engages in part time paid employment. She has taken on responsibility for the care of Mx C, her 26 year old sibling. Mx C has been diagnosed with various mental health and other conditions including, complex PTSD, severe depression and potential autism spectrum disorder.
Ms B Laukkanen has cared for Mx C since 2015, and describes the decline in Mx C’s mental health, accompanied by a severe suicide risk. She describes that during the marriage, in response to this crisis, the husband and wife took steps to secure adequate and appropriate accommodation for Ms B Laukkanen and Mx C, in circumstances where Ms B Laukkanen has had to forego study, elongating the completion of her tertiary education, and has been unable to hold full time work, given the responsibilities in respect of Mx C.
Ms B Laukkanen also describes repeated conversations as to the husband’s and wife’s securing of accommodation for Ms B Laukkanen and Mx C in the light of Mx C’s vulnerabilities, and of the husband and wife impressing upon Ms B Laukkanen her responsibility to care for Mx C in the context of Mx C’s suicidality.
Ms B Laukkanen has described that care, in part, as follows:
Additionally, [Mx C]’s mental health often declines severely due to the episodic nature of [their mental illnesses]. Since 2016, [Mx C] has experienced more than 25 acute periods of mental dysregulation. The role as carer has been most acutely demanding during these periods of dysregulation, requiring extensive, 24/7 care. At these times, this involves me providing intense emotional support, managing and administering medications, making modifications to the home environment to minimise the risk of self-harm, being constantly present and vigilant due to the risk of suicide, facilitating therapeutic activities to support recovery, providing extensive assistance with everyday tasks, and oftentimes being on the receiving end of angry and confused emotions. It also involves communicating tirelessly with health professionals and services involved in [Mx C]’s care to ensure they understand the history and context of [Mx C]’s presentations and so to ensure [Mx C] receives appropriate care with dignity.[2]
[2] Affidavit of Ms B Laukkanen filed 2 August 2023 [53].
The summary set out above is high level. It should not be though that there is any discounting of the description given by Ms B Laukkanen, which is of arduous, intense, and enduring efforts to support and protect Mx C.
Ms B Laukkanen’s description brings this case squarely within the description of Gaudron J in Dougherty.
A further circumstance is a strong indicator that the claim is one that arises out of the matrimonial relationship - the support for the claim given by the consent of both the husband and wife to the orders settling property upon Ms B Laukkanen and Mx C, in Mx C’s case by means of a trust. Accepting that jurisdiction cannot be conferred by consent, the consent is at least indicative of the acceptance by the husband and wife of an ongoing responsibility arising out of the marital relationship.
The explanations proffered by the husband and wife for this are contained in notations to the consent terms that are extracted as follows:
…
5.It is further noted that in consideration for interest in real property located at [F Street] [Suburb E] [Region D] (to be transferred to the second respondent (and the Trustee of the [Mx C] Trust (All Needs Protective Trust) as tenants in common in equal shares), pursuant to the final orders with the first respondent, the second respondent has, at the time of entering into these interim orders, entered into a Deed of Release with the applicant husband and such Deed of Release will come into effect upon the making of the final orders on the above terms as between the applicant and the first respondent.
…
P. The intention of these Consent Orders is:
•To provide the adult children with the [Suburb E] Property as tenants in common in equal shares, with [Mx C]’s share to be placed into a trust established for their benefit;
•To pay all expenses associated with the transfer of the [Suburb E] Property and the preparation and sale of the [Suburb G] property, as defined in these orders, including Capital Gains Tax (CGT) liabilities that will arise for each property, from the proceeds of sale and the Westpac home loan account numbers ending […]86 and […]39, where applicable;
…
NOTATIONS
…
C.The Applicant Husband considers and intends for the transfer of the [Suburb E] Property to the adult children of the marriage to constitute an advancement of their inheritance and to preclude a further claim of any sort against the Applicant Husband and his estate. The intention of the Applicant Husband in doing this is also to provide housing security to the adult children of the marriage.
D. It is noted that the Applicant Husband and the adult child, [Ms B Laukkanen], have entered into a Deed of Release prior to the signing of these Orders which provides that [Ms B Laukkanen] will make no further claim against the Applicant Husband or his estate.
E. The parties have established an All Needs Protective Trust for [Mx C] (aka […]) [Laukkanen] which shall hold [Mx C]’s share of the [Suburb E] Property.
F. The Respondent Wife's intention in establishing the Trust is to provide for [Mx C]’s housing security. The Respondent Wife's agreement for property to be transferred in the Trust does not preclude any future inheritance from her.
G. The Applicant Husband's intent in establishing the Trust for [Mx C] and providing them with the [Suburb E] Property as tenants in common in equal shares with [Ms B Laukkanen], is to provide for [Mx C]'s housing security, and is by way of an advancement of [Mx C]'s inheritance.
H. It is noted that the Trustee of the Trust referred to in Notation E will be obligated by law to meet the Trust's share of all expenses necessary for maintaining the property which is to provide [Mx C]'s housing security. In order to ensure this in addition to ensuring that the Trustee has the capacity to maintain compliance with Trust’s tax obligations without stress, the Respondent Wife intends to loan a lump sum to the Trust, from her distribution from this settlement.
(As per the original)
Those explanations emphasise the objective of providing housing security for Ms B Laukkanen and Mx C, an objective consistent with the extraordinary circumstances faced by Ms B Laukkanen and Mx C.
CONCLUSION
The stated objective of securing housing for Ms B Laukkanen and Mx C, in2 circumstances of extreme vulnerability on the part of Mx C, and the need for Mx C’s welfare and advancement to be protected by the husband and wife, and in the circumstances of the responsibility borne by Ms B Laukkanen, fall within the extraordinary circumstances required to justify the exercise of the discretion to settle matrimonial property upon Ms B Laukkanen and, via a trust, upon Mx C. The circumstances are both intimately connected to the matrimonial relationship and to the husband’s and wife’s relationships to the children of that marriage relationship. The settlement is in discharge of the responsibilities of the parties of the relationship to Ms B Laukkanen and Mx C, particularly in the light of the responsibility cast by them upon Ms B Laukkanen.
However, that justification must still be weighed in an overall consideration of whether the orders are just and equitable, a necessary quality of any settlement of property pursuant to s79.
As between the husband and wife, taking into account the pool of property identified in the balance sheet annexed to the settlement terms, and taking into account their recitals as to the relevant factual matters underpinning the settlement, the settlement may be considered to be just and equitable, and reflective of the conceded imbalance of contributions, in a marriage of long duration.
As to the settlement upon Ms B Laukkanen and Mx C, the provision of housing is proportionate to the responsibility of the husband and wife arising from their marital relationship to Ms B Laukkanen and Mx C, in the extraordinary circumstances of Ms B Laukkanen and Mx C.
That settlement further sits within a property settlement that reflects the imbalance of contributions and makes appropriate provision for the husband and wife even after the settlement upon Ms B Laukkanen and Mx C.
Considering the circumstances as identified by the husband, wife and Ms B Laukkanen, the adjustment as between the parties and the settlement upon Ms B Laukkanen and Mx C may be considered to be just and equitable.
Whilst the settlement will take place following Ms B Laukkanen’s withdrawal from the proceedings, the structure of s79(1)(d)(i) provides no bar to the settlement then being made.
Orders and notations will be made in accordance with the terms contained in Exhibit C1.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 22 December 2023
EXHIBIT C1
BY CONSENT, IT IS ORDERED:
1.By consent Order 1 of Orders made on 13 June 2023 joining the Second Respondent Ms B Laukkanen to these proceedings, is discharged.
2.That the Second Respondent is discharged as a party in these proceedings and will take no further part in these proceedings.
3.That there shall be no Order as to Costs arising from the joinder or the discharge of the Second Respondent.
4.It is noted that the Applicant and First Respondent have resolved property proceedings on a final basis and final Orders will be filed forthwith following the making of this interim Order.
5.It is further noted that in consideration for interest in real property located at F Street Suburb E Region D (to be transferred to the second respondent (and the Trustee of the C Trust (All Needs Protective Trust) as tenants in common in equal shares), pursuant to the final orders with the first respondent, the second respondent has, at the time of entering into these Interim Orders, entered into a Deed of Release with the Applicant Husband and such Deed of Release will come into effect upon the making of the final orders on the above terms as between the Applicant and the First Respondent.
RECITALS
A.The Applicant Husband’s name at birth was Mr Z (“birth name”). The Applicant Husband changed his name to Mr Laukkanen upon marriage to the Respondent Wife. The Applicant Husband intends to be known by his birth name and has obtained a change of name certificate to verify same.
B.The parties have agreed upon the following Consent Orders in order to settle property matters between them and provide marital property to their two adult children, Ms B Laukkanen and Mx C Laukkanen.
C.The settlement recognises that the Applicant Husband has received (he asserts) the benefit of an advancement of inheritance which provided the entire funds to purchase the Region K property and funds from an inheritance were applied to the purchase of the Suburb E and Suburb G properties with the assistance of home loans.
D.The value of the inheritance received by the Applicant and applied to acquire these properties was $1,358,000 and is not in dispute.
E.The Respondent Wife asserts that the purchase of the Region K property was made possible through a loan arrangement between the Applicant Husband, the Respondent Wife and the Applicant Husband’s parents, Mr H & Ms J. The Respondent Wife asserts that both parties contributed to monthly interest only loan repayments from joint earnings for this property for the period 2004-2011.
F.The Applicant Husband asserts that, according to the Applicant Husband’s records, no loan repayments were made since 2009, although the Respondent Wife asserts payments were made to 2011.
G.The settlement recognises that the Applicant Husband received the benefit of an advancement of inheritance which provided remaining funds to pay out the loan. Further funds from the Applicant Husband’s inheritance were applied to the purchase of the Suburb E and Suburb G properties (together with contributions from joint savings and income, and borrowings via home loans).
H.The parties note that – in addition to the above - funds to the value of $452,000 from insurance and donation monies paid out following the 2020 weather events at the Region K property were applied towards the home loans of the Suburb G and Suburb E properties during the relationship.
I.The Wife asserts that a further sum of $155,000 was contributed towards the acquisition of the Suburb E and Suburb G properties, made up of a combination of funds from the Husband’s maternal grandfather’s estate and joint savings. The Wife also asserts that the deposit for the purchase of the Town L Property came entirely from her pre-marriage savings of approximately $20,000 and that both parties contributed to mortgage repayments.
J.The Husband asserts that since 2005 the Wife has also retained all net rental income from the Town L Property in her personal account/s, including the Husband’s share. The Husband also asserts that he notified the Australian Taxation Office of that fact at a time prior to separation, to enable him to lodge his tax returns without reference to that income as he did not receive it.
K.The Wife asserts that since 2005 all net rental income from the Town L Property has been paid into her bank account, and that this was a mutually agreed arrangement. She asserts that she applied the Town L net rental income to pay toward joint household expenses for the benefit of all family members, and also to cover Town L Property expenses and repairs that were not already covered by the Agent. Some of the funds were also used to repay the loan arrangements on the Region K Property detailed in Recital E above, and the mortgages on subsequently purchased properties. In addition to the Wife’s employment income, some rental income from the Town L Property also made up part of the savings that she held at the end of the relationship.
L.The Respondent Wife asserts that the tools which form part of this property settlement were purchased to replace the tools the Respondent Wife’s father had lent to the Applicant Husband and herself in 2005, which at the time were in brand new condition. The Respondent Wife asserts that the Applicant Husband and herself used her father’s tools extensively to the point that they were no longer able to be repaired, at which time the tools were purchased from marital funds prior to the parties’ separation, as a replacement for her father’s tools.
M.The Husband asserts that the tools were purchased from his sole funds as tools were required and necessary to maintain the Region K Property.
N.The Respondent Wife is expected to receive an inheritance jointly with her sister on the passing of her elderly parents.
O.It is noted that the Respondent Wife is the sole account holder of a N Health Insurance policy (membership number …), and that just prior to the signing of these orders she has taken on the payment of premiums for that policy (which until then had for some years been paid by the Applicant Husband, and at times from the shared liability Suburb G Home Loan Accounts). The Applicant Husband’s cover under that policy shall cease in line with the next billing cycle, with the Respondent Wife’s and one of the parties’ adult children cover to continue.
P.The intention of these Consent Orders is:
·To provide the adult children with the Suburb E Property as tenants in common in equal shares, with Mx C’s share to be placed into a trust established for their benefit;
·To pay all expenses associated with the transfer of the Suburb E Property and the preparation and sale of the Suburb G property, as defined in these Orders, including Capital Gains Tax (CGT) liabilities that will arise for each property, from the proceeds of sale and the Westpac home loan account numbers ending …86 and …39, where applicable;
·To pay certain property related expenses and costs associated with the Suburb E, Suburb G and Town L properties, as defined in these Orders, pending the respective transfers of the Suburb E and Town L properties and sale of the Suburb G property, from the Westpac home loan account numbers ending …86 and …39;
·For the parties to determine the balance of the net asset pool to be divided between them, using the attached Balance Sheet (which is Annexure A to these Orders) for the values of the assets, NOTING THAT some figures are not yet known (for example, those relating to readying the Suburb G property for sale, the sale price of Suburb G, and the CGT liabilities);
·The parties have agreed to a methodology set out in the worked examples at Annexure B to these Orders which incorporates the matters noted in the point above;
·Subject to these Orders herein, for the rental income from the Suburb G property to be deposited into the Westpac home loan account number ending …86, to enable payment of the Agreed Expenses set out herein to be met pending the sale of the Suburb G property;
·Subject to the Orders herein, that permit transfer of funds to pay various separate loan accounts, to otherwise restrain the Applicant Husband from allocating personal expenses to accounts ending …86, …39, and …89, increasing the indebtedness of those accounts, as outlined in these Orders.
·For the Applicant Husband to take on the sole responsibility for the Westpac loan accounts with numbers ending …17, …09, …41, …96, and …45 (and the linked offset account number ending …63) currently secured on the Suburb G property, and to apply to transfer these loans to the Town L Property upon the transfer of that property to him, noting that the balance of these accounts on the Balance Sheet will be nil. The Orders also provide for the scenario of the sale of the Town L Property in default, if required (with provision for the costs of sale and payment of CGT in that event).
·For the net balance from the sale of the Suburb G property to be divided such that the Respondent Wife receives 40% of the value of the overall net pool of assets and the Applicant Husband receives 60%, with values as per the Balance Sheet amended by actual net values relating to the proceeds of the property sale (after taking into account sales and agreed further expenses added to the shared home loan liabilities), with the value of the other assets (cars, bank balances, etc) remaining unchanged and with the Suburb E value being noted as nil as it is being transferred to the adult children;
·In the event that there are insufficient funds to pay the Respondent Wife the payment required from the Suburb G sale, the Applicant Husband intends on raising finance (including by drawing on a loan or loans secured against the Town L Property once it is transferred into his sole name pursuant to these Orders) to provide the balance of funds to the Respondent Wife, in order to hopefully avoid the further sale of property and consequent further sale expenses and crystallisation of CGT. It is intended that in the event that the Suburb G property sells for less than $970,000, then the Respondent Wife will receive the entire net proceeds of sale, plus $100,000 (or the balance of the shortfall) from the Respondent Husband (which is what he has advised he can raise from drawing on the loans secured against the Town L Property) and the balance still owing to the Respondent Wife shall be paid by the Applicant Husband by equal monthly instalments over a period of 18 months from the settlement date. However, in the event the sale of further property is required, these Orders deal with how that sale is carried out, and how those CGT liabilities would be paid.
BY CONSENT IT IS ORDERED:
1.These Orders are made by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975.
TRANSFER OF THE TOWN L PROPERTY
2.That within 42 days of the date of these Orders, the Respondent Wife shall sign all documents and do all things necessary to transfer to the Applicant Husband all her right title and interest in the property situated at and known as W Street, Town L in Region V being Lot ... of Town L from plan … (Volume … Folio …) (“the Town L Property”), at the Applicant Husband’s sole expense, excluding any legal costs the Wife incurs in relation to the Transfer.
3.That contemporaneously with the transfer in Order 2 above, the parties do all things necessary to discharge the mortgage to Westpac secured against the Town L Property, at the Applicant Husband’s sole expense with respect to the Discharge of Mortgage, being registered dealing number … (registered in early1996). IT IS NOTED that the home loan secured by that mortgage has been paid off and no monies are owing by the parties jointly on any loan secured by that mortgage.
4.That from the date of these Orders and up to the settlement of the transfer of the Town L Property to the Applicant Husband, the following shall apply:
4.1Neither party shall mortgage or otherwise offer the Town L Property for security other than for their compliance with Order 2 or Order 13; and
4.2The Applicant Husband shall cause any agreed Town L Pending Transfer (as defined in 20.7) to be paid from funds in the Suburb G Home Loan Accounts (as defined in Order 18).
5.The Applicant Husband will be solely entitled to the whole of the rental income from the Town L Property from the date of settlement of the transfer of the Town L Property into his sole name to be calculated pro rata by the managing agent.
TRANSFER OF SUBURB E PROPERTY TO ADULT CHILDREN
6.That within 42 days of the date of these Orders and contemporaneous with the transfer of the Town L Property to the Applicant Husband pursuant to Order 2, the Applicant Husband will sign all documents and do all things necessary to transfer all of his right, title and interest in the property situated at and known as F Street, Suburb E in Region D, being the property contained in Volume … Folio … Edition … (in Suburb E Section … Block … on DP …) (“the Suburb E Property”) to the parties’ adult children, as tenants in common in equal shares unencumbered, as follows:
6.1Ms B Laukkanen; and
6.2To Ms O as the Trustee of the C Trust for Mx C.
7.That contemporaneous with the transfer pursuant to Order 6, the Applicant Husband will cause the mortgage securing Westpac home loan ending …89 secured on the Suburb E Property (referred to in these orders as the “Suburb E Home Loan Account”) to be discharged, with the cost of the discharge to be paid from the Suburb G Home Loan Accounts (defined in Order 18), as outlined in Order 20.5 below.
8.That within 14 days of the date of these Orders:
8.1The parties shall do all acts and sign all documents necessary to engage P Lawyers to act as conveyancer in relation to the transfer of the Suburb E Property (and the parties have agreed for P Lawyers to act for both the transferor and transferee) at fixed fee costs of $1,250 for the transferor and $1,478 for the transferee’s costs;
8.2The Applicant Husband will authorise and direct the conveyancer to communicate and share information with the Respondent Wife and the transferees (and/or their lawyers) in relation to the implementation of this Order, and will provide a copy of these Orders to the P Lawyers conveyancer for this purpose; and
8.3The total conveyancing costs associated with the transfer of the Suburb E Property (that is, both the costs of the transferor and the transferee) shall be paid from the Suburb G Home Loan Accounts (as defined in Order 18 and outlined in 20.5); and
8.4The parties shall do all things and sign all documents necessary to pay the conveyancing costs relating to the Suburb E Property, and any stamp duty payable on the transfer (NOTING that stamp duty is not applicable upon the transfer), with such payment to be made from the Suburb G Home Loan Accounts.
9.That following the Orders being made and before the date of settlement of transfer of the Suburb E Property, the Applicant Husband shall cause the building insurance policy he has on the Suburb E Property to cease on or before the date of settlement of transfer, and at least 4 days prior he or his solicitor shall inform Ms B Laukkanen and Ms O (as Trustee for the C Trust) in writing of the date at which the building insurance cover shall cease. IT IS NOTED that Ms B Laukkanen and the C Trust will bear responsibility for building insurance cover on the Suburb E Property once the Applicant Husband’s insurance ceases, as noted in Order 32, and that they will require notice in order to arrange for this cover to begin on that same day and thus ensure that there is no uninsured period.
10.That in the unlikely event that, while the Applicant Husband continues to hold a building insurance policy on the Suburb E Property, and an event occurs which damages the Suburb E Property and is claimable as defined under the terms of that policy, the Applicant Husband shall do all things and sign all documents necessary to lodge a claim for that event with the insurer in order to rectify the damage to the property (noting that any excess will be the responsibility of Ms B Laukkanen and the Trustee of the C Trust), and to cooperate in every way with the insurer to see that the works are carried out by the preferred contractors selected by the insurer.
HOME LOAN & OFFSET ACCOUNTS AND RESTRAINT ON USE
11.That from the date of these Orders, neither party shall mortgage or otherwise offer any property listed on the Balance Sheet (which is Annexure A to these Orders) for security other than for the purpose of complying with their obligations under these Orders.
12.The Applicant Husband shall be solely responsible for the following home loan accounts, which includes meeting the repayments on those loans, and all other liabilities associated with the home loan accounts, referred to collectively herein as the “Husband’s Loan Accounts”:
12.1Westpac loan account number ending …17;
12.2Westpac loan account number ending …09;
12.3Westpac loan account number ending …41;
12.4Westpac loan account number ending …96;
12.5Westpac loan account number ending …45 (and the linked offset account number ending …63.
13.That within 14 days of the Town L Property being transferred into the Husband’s sole name, he shall sign all documents and do all things necessary to apply for the Husband’s Loan Accounts to be transferred to the Town L Property, noting that it may be possible for the Husband to apply in advance of the settlement date.
14.IT IS NOTED that the Husband intends to fund any further payment that may be required to make up the balance of the final payment owing to the Respondent Wife at the settlement of the sale of the Suburb G property from the Husband’s Loan Accounts (if and when these are successfully transferred to the Town L Property).
15.Until the Husband’s Loan Accounts have been successfully transferred to the Town L Property, the Husband is restrained from increasing the indebtedness of the Husband’s Loan Accounts, except with respect to the payment of his legal expenses, and transfers to and from the Husband’s Loan Account/s to and from the Husband’s savings account ending …63 on the 17th of each month, sufficient for but not in excess of the purpose of ensuring that there are sufficient funds in that savings account to meet the automatic contracted loan repayments for the Husband’s Loan Accounts as listed in Order 12 (noting that such loan repayments are due on 18 or 19th of each month and that the balances of the Husband’s Loan Accounts for the purpose of the balance sheet will be nil).
16.That pending the transfer of the Suburb E Property to the adult children pursuant to Order 6, the Husband is restrained from increasing the indebtedness of home loan account number …89 (and its offset account ending …73) which is secured on the Suburb E Property and currently has a nil balance (referred to in these orders as the “[Suburb E] Home Loan Account”.)
17.IT IS NOTED that the Suburb E home loan offset account ending …73 is used as the source account for the monthly automatic contracted loan repayments for the Suburb G Home Loan Accounts (listed in Order 18) and the Suburb E Home Loan Account, and funds to cover these repayments are required to be transferred into …73 around the 17th of each month, which will be required on the 18th or 19th of each month to meet the loan repayments; and it is ordered that the Applicant Husband may use funds from the Suburb G Home Loan Accounts for the purpose of meeting these repayments.
18.That from the date of these Orders and except for Agreed Expenses listed in Order 20 including the transactions noted in Order 17, the Applicant Husband is restrained from making withdrawals or payments from and/or increasing the indebtedness of, the following accounts held in his sole name, referred to collectively herein as the “[Suburb G] Home Loan Accounts”):
18.1Westpac loan account number ending …86 (and the linked offset account number ending …81); and
18.2Westpac loan account number …39 and the linked offset account number …16.
19.The Applicant Husband will ensure that the Suburb G Home Loan Accounts remain secured against the Suburb G property until they are repaid and discharged upon the sale of the Suburb G property pursuant to these Orders.
AGREED EXPENSES
20.Notwithstanding Order 18 above, the Applicant Husband shall facilitate the payment of the following “Agreed Expenses” from the Suburb G Home Loan Accounts:
20.1The “Shared Home Loan Expenses” (see Order 30.2) defined as the contracted monthly home loan repayments and interest for the Suburb G Home Loan Accounts (as defined in Order 18) and the Suburb E Home Loan Account (as defined in Order 16), pending the transfer of the Suburb E Property and the sale of the Suburb G property;
20.2“[Suburb G] Expenses Pending Sale” (see Order 30), defined as the recurring or necessary expenses associated with the Suburb G property where not paid directly by the managing real estate agent from rental income, including the rates, water usage and sewerage fees where applicable, building and landlord insurance, utilities, the managing agent’s fee, and reasonable and necessary maintenance pro rataed as appropriate with the purchaser;
20.3The “[Suburb G] Sales Costs” (see Order 25), defined as the costs required for the sale of the Suburb G property including marketing expenses, building and pest report, and conveyancing fees (where such costs are required upfront, and cannot be paid from proceeds of sale);
20.4The “[Suburb G] Sale Preparation Costs” (see Order 25.3–26), defined as the costs of necessary reasonable work to enhance the property’s saleability, including cleaning and cosmetic repairs, painting, required repairs, and styling costs (where such costs are required upfront, and cannot be paid from proceeds of sale), up to $8,000 in total. Any proposed expense once the $8,000 cap has been reached requires the written agreement of the Respondent Wife before work is commenced;
20.5The “[Suburb E] Transfer Costs” (see Orders 7–8.4), defined as the costs required for the transfer of the Suburb E Property including conveyancing fees for the transferrer and transferee, discharge fees relating to the Suburb E home loan, and any stamp duty payable;
20.6The “[Suburb E] Expenses Pending Transfer” (see Orders 31 and 32), defined as the recurring or necessary expenses associated with the Suburb E Property (pro rataed to the date of settlement of transfer), including the rates, building insurance, water and sewerage, up to the date of settlement of the transfer of the Suburb E Property;
20.7The “[Town L] Pending Transfer” (see Orders 33–37), defined as the recurring or necessary expenses in either party’s name associated with the Town L Property (pro rataed to the date of settlement of transfer) where not paid directly by the managing real estate agent from rental income, including the rates, water usage and sewerage fees, building and landlord insurance, utilities as applicable, the managing agent’s fee as applicable, and essential maintenance;
21.At such time that the calculations for final payments and distributions between the parties are made, the parties shall adopt, as the agreed balance of joint liability for the Suburb G Home Loan Accounts, the following:
21.1The amount of $145,200 in loan account …86;
21.2Property expenses and interest that accrued between 8 September 2023 and 30 November 2023, fixed at $5,228.81 and the balance sheet (Annexure A) has been updated to include this amount;
21.3Any further Agreed Expenses as defined in Order 20 incurred from 1 December 2023 until the date of settlement of the sale of the Suburb G property, noting that this includes interest accrued on the Suburb G Home Loan Accounts.
22.The total expenses incurred by the Applicant Husband from his use of the Suburb G Home Loan Accounts which are not Agreed Expenses (in accordance with Orders 19 and 20 or otherwise agreed to in writing by the parties) shall be deducted from his final share of the net property pool (which is calculated in accordance with Order 44 below), unless the Applicant Husband has repaid the expense.
23.On every occasion that the Applicant Husband meets an agreed property expense from the Suburb G Home Loan Accounts (as defined in Orders 17, 18 and 20), the following shall apply:
23.1The Applicant Husband shall provide documentary evidence to the Respondent Wife within 4 days of the cost being incurred, including screenshots of the transfers, loan account statements, invoices and receipts (or the Applicant Husband may authorise the Suburb G Agent to forward such invoices and receipts paid, if appropriate);
23.2If the Applicant Husband fails to comply with Order 23.1 the expense shall not be considered to have been incurred pursuant to Order 20, and shall be treated in accordance with Orders 22 and 44.5.1 (unless otherwise agreed to in writing by the parties or rectified by the Applicant Husband prior to settlement of the sale of the Suburb G property);
SALE OF THE SUBURB G PROPERTY
24.That within 7 days from the date of these Orders, the Applicant Husband shall authorise and direct the managing agent for the Suburb G property to issue notice to the tenants at the Suburb G property to vacate that property, to facilitate its sale.
25.That within 7 days of the tenants vacating the Suburb G property the Applicant Husband shall do all things and sign all documents necessary to cause the following to occur:
25.1Engage X Real Estate real estate agents (“the [Suburb G] Agent”) to market the Suburb G property for sale with vacant possession, with the asking price or auction reserve price to be as recommended by the Suburb G Agent, and the upfront costs of sale (which cannot be paid from sale proceeds) including marketing expenses, building and pest report shall be paid from the Suburb G Home Loan Accounts (in accordance with Order 20.3 above);
25.2Engage Y Conveyancing (“the [Suburb G] Conveyancer”) to act on the sale of the Suburb G property, unless otherwise agreed in writing by the parties, and the following shall also occur:
25.2.1The Suburb G conveyancer’s fees are to be paid from sale proceeds or from the Suburb G loan accounts (in accordance with Order 20.3 above), depending upon when payment is due; and
25.2.2The Applicant Husband shall authorise and direct the Suburb G conveyancer to communicate with, share all information with (including communications received or delivered in relation to the Suburb G property and its settlement of the sale) the Respondent Wife (and/or her lawyers) and the Applicant Husband (and/or his lawyers) in relation to the implementation of these Orders, and shall provide a copy of these Orders to that conveyancer for this purpose.
25.3Provide instructions to the Suburb G Agent to cause contractors to be engaged to carry out necessary and reasonable work at the Suburb G property to enhance its saleability, for example including cleaning, cosmetic repairs, painting, required repair work, and styling, with these expenses (defined as the Suburb G Sale Preparation Costs in Order 20.4 above) paid from the Suburb G Home Loan Accounts or sale proceeds, depending upon when payment is due.
26.In relation to the Suburb G Sale Preparation Costs the following shall apply:
26.1The Applicant Husband will inform the Respondent Wife of all expenditure which is drawn from the Suburb G Home Loan Accounts (and will provide all loan account transaction listings relating to the expenditure, and receipts or invoices acquitting the various expenses to the Respondent Wife within 4 days);
26.2Where a proposed cost is estimated to exceed $2,000 the Applicant Husband will direct the Suburb G agent to obtain at least 3 quotes for the work and to provide the quotes to both the Applicant Husband and the Respondent Wife (though it is only if Suburb G property preparation costs have exceeded $8,000 that the Respondent Wife needs to agree to an expense being incurred). Once the quotes have been received, the cheapest quoted work shall be undertaken (or as otherwise agreed in writing between the parties);
26.3The Respondent Wife shall not unreasonably withhold her agreement when required under Order 20.4 above to further Suburb G preparation costs being incurred, particularly if the work is recommended by the Suburb G agent.
27.The Applicant Husband shall not accept any offer to purchase the Suburb G property that is less than 90% of the listing or auction reserve price. If, after 2 months of the Suburb G Property being listed for sale, no sufficiently high offer is received, the parties shall agree in writing (by separate written communication to the Suburb G Agent) as to the offer that is to be accepted. The Applicant Husband shall provide a copy of these Orders to the Suburb G Agent for this purpose.
RENTAL INCOME AND PAYMENT OF SUBURB G EXPENSES PENDING SALE
28.Pending sale of the Suburb G property, the Applicant Husband will cause the net rental income from the Suburb G Property to be paid into the Westpac home loan account …86.
29.IT IS NOTED that the net rental income from the Suburb G Property less the managing agent fees is currently $2,377.05. In the event the amount of net rental income or agent’s fee changes, the Applicant Husband will advise the Respondent Wife in writing within 14 days from the date the Applicant husband receives written notification.
30.Where not paid directly by the managing real estate agent from rental income, or where the rental income is insufficient to pay the following expenses, the Applicant Husband will cause the below expenses to be paid from the redraw facility on either of the Suburb G Home Loan Accounts (as defined in Order 18):
30.1Recurring or necessary expenses associated with the Suburb G property (pro rata with the purchaser at the date of settlement of sale), including the rates, utilities, water usage and sewerage fees where applicable, building and landlord insurance, the managing agent’s fee, and reasonable and necessary maintenance (defined as Suburb G Expenses Pending Sale in Order 20.2); and
30.2Shared Home Loan Repayments (as defined in Order 20.1).
PAYMENT OF SUBURB E AND TOWN L PROPERTY EXPENSES PENDING TRANSFER
31.Pending settlement of the transfer of the Suburb E Property in accordance with Order 6, the Applicant Husband shall cause the Suburb E Expenses Pending Transfer to be paid from either of the Suburb G Home Loan Accounts (being account numbers ending …86 and …39).
32.Suburb E Expenses Pending Transfer are recurring expenses associated with the Suburb E Property (pro rata to date of settlement of transfer), being the rates, building insurance, and water and sewerage (as defined in Order 20.6). IT IS NOTED that, subject to Order 10, the adult children will be responsible for all maintenance, pending transfer of the Suburb E Property to them, upon the signing of the Consent Orders by the parties.
33.Pending settlement of the transfer of the Town L Property to the Applicant Husband pursuant to Order 2, the Applicant Husband shall cause Town L Pending Transfer to be paid from the Suburb G Home Loan Accounts (as defined in Order 18).
34.Upon the transfer of the Town L Property to the husband pursuant to Order 2, the Applicant husband will be solely responsible for, and will indemnify the Respondent Wife against, all liabilities and outgoings (of whatsoever kind) associated with the Town L Property noting the Town L Property has no monies owing on any loan secured on that property, at the time these Orders are entered into.
35.Town L Pending Transfer (as defined in Order 20.7) are recurring or necessary expenses in either party’s name associated with the Town L Property (pro rata to date of settlement of transfer), where not paid directly by the managing real estate agent from rental income, including the rates, water usage and sewerage fees, building and landlord insurance (noting that this is currently the only expense not paid directly by the managing agent from rental income), utilities as applicable, the managing agent’s fee as applicable, and essential maintenance.
36.The parties shall both direct and authorise the managing agent to deposit the net rental income from the Town L Property into one of the Suburb G Home Loan Accounts for the purpose of funding the Agreed Expenses, pro rataed from the date the Consent Orders are filed with the Court until the settlement date of the transfer of the Town L Property to the Applicant Husband, from which time all net rental income shall be paid only to the Applicant Husband and at his direction into his personal bank account.
37.In relation to Order 33 above, until the transfer of the Town L Property into the Applicant Husband’s sole name, any cost recommended by the agent for emergency repairs that is estimated to exceed $1,500 must be agreed between the parties in writing (which may be affirmed in separate communications with the property manager), and three quotes for the work should be obtained for the parties’ consideration and nomination and the respondent Wife shall not unreasonably withhold her agreement. If within 2 days of a party receiving the three quotes for the emergency repair and that party fails to respond to the Agent in writing as to the preferred nominee to undertake the work, then the nominated quote of the responding party shall be sufficient authority for the agent to instruct the nominated tradesperson to implement emergency repairs in accordance with the nominated quote.
TRANSFER OF REGION K PROPERTY
38.That within 42 days of the Respondent Wife receiving her Final Sum the parties will do all things and sign all documents necessary to transfer to the Applicant Husband, at the Applicant Husband’s sole expense, the property known as Q Street Region K in the state of New South Wales being Folio …, (“the Region K Property”), which is unencumbered.
39.The Respondent Wife shall provide to the conveyancing solicitor engaged by the Applicant Husband her signed Transfer form for the transfer of the Region K Property at least 14 days prior to the date of settlement of the sale of the Suburb G Property, and the following shall then apply:
39.1The Transfer shall be held in escrow pending the full payment of the Final Sum to the Respondent Wife as required under these Orders;
39.2The Transfer shall only be finalised and lodged by the conveyancing solicitor upon receiving written instructions from both parties (which shall include confirmation that the relevant payment has been paid to and received by the Wife) within 7 days of the Wife receiving her final cash sum;
39.3In the unlikely event that the Region K Property has been sold pursuant to Order 54, the parties shall (jointly or independently) provide documentary evidence of settlement of sale to the conveyancing solicitor, and in that event the conveyancing solicitor is directed and authorised to destroy the Transfer immediately (and shall not use it for any other purpose).
39.4Upon engaging the conveyancing solicitor (pursuant to order 39) for the transfer of the Region K Property the Applicant Husband shall provide a copy of these Orders for purposes of that Order.
40.That from the date of these Orders and up to the settlement of the transfer of the Region K Property:
40.1The Applicant Husband shall have the sole right to occupy the Region K Property;
40.2The Applicant Husband shall pay all outgoings (including but not limited to mortgage repayments (if any), house insurance, rates and land tax (if any)) with respect to the Region K Property, and indemnify the Respondent Wife against all those expenses; and
40.3Neither party shall mortgage or otherwise offer the Region K Property for security other than for their compliance with these Orders.
DISTRIBUTION OF SUBURB G SALE PROCEEDS
41.That upon the sale of the Suburb G property the Applicant Husband and the Respondent Wife shall jointly authorise and direct the Suburb G conveyancer in writing (which may be affirmed in separate communications with the Suburb G conveyancer) to distribute the sale proceeds in the following order and priority.
42.First, the following expenses shall be paid:
42.1Payment of costs of sale and preparation for sale incurred pursuant to Orders 25–26 that have not been paid upfront, including conveyancing fees and commission, and subject to:
42.1.1The Applicant Husband (and/or his solicitor) providing invoices for such costs of sale and preparation for sale to the Respondent Wife (and/or her solicitor) and the conveyancer; and
42.1.2The Respondent Wife (and/or her solicitor) communicating her agreement in writing to the conveyancer and the Applicant Husband (and/or his solicitor), noting that the Respondent Wife must indicate her answer within 4 business days of the invoice or invoices referred to in 42.1.1 being delivered to her, and may not withhold her agreement unreasonably, and that if the Respondent Wife fails to respond within that timeframe, agreement will be deemed to have occurred and may be relied upon by the conveyancer to pay for the cost in question in accordance with the invoice provided by the Applicant Husband;
42.2Payment of the Suburb G Home Loan Accounts (defined in Order 18) in order to discharge the mortgages secured on the Suburb G property (and those discharge fees);
42.3In the event that the Applicant Husband has been unsuccessful in transferring the Husband’s Loan Accounts to the Town L Property (pursuant to Orders 12–15), with the effect that they are still secured on the Suburb G Property, the Husband shall repay and discharge these directly with his personal funds (if available to him), and failing that, they shall be repaid and the mortgages discharged from the Suburb G sale proceeds (with payment of those discharge fees too). In the event this occurs the total debt and discharge fees relating to the repayment of loans with account numbers ending …17, …09, …41, …96, and …45 (or any of these listed loans still secured on the Suburb G Property) will be referred to as “the Husband’s Loan Debt”, and this amount shall not be part of the amounts deducted from the sale price in calculating the net Suburb G sale proceeds for the purpose of updating the value of the Suburb G property on the Balance Sheet pursuant to Order 44.5.2. The Husband’s Loan Debt shall be deducted from his final share of the property pool (see Order 44.5).
42.4Funds for the payment of the estimated CGT liabilities to the controlled money account established pursuant to Order 43, collectively referred to as “the CGT Funds” and estimated to total approximately $146,000 (noting that these liabilities will be updated following the sale and transfer, in accordance with Order 61), comprising:
42.4.1Estimated CGT on sale of Suburb G property of $61,000;
42.4.2Estimated CGT on the transfer of the Suburb E Property of $85,000;
43.In order to hold the CGT Funds (and proceeds of property sales or sales if applicable), the parties will open a controlled money account with P Lawyers (in the name of both parties) and to do so each party will pay half of any necessary initial payment required by P Lawyers from their respective personal funds upfront on account of their work in establishing the account and finalising the account pursuant to these Orders, and P Lawyers shall be provided with a copy of these Orders for this purpose.
44.Before distribution of the remaining Suburb G sale proceeds the following calculations shall be made:
44.1The agreed balance of joint liability for the Suburb G Home Loan Accounts shall be updated on the Balance Sheet pursuant to Orders 21 and 22;
44.2The value for the Suburb G property will be determined based on the sale price of the Suburb G property less the costs and expenses detailed in Order 42, with the exception of the value of any non-agreed expenses (as defined in Order 22, if applicable) and the Husband’s Loan Debt (as defined in Order 42.3, in the unlikely event that this applies), and no other figure in the Balance Sheet will be altered in this instance;
44.3Then, 60% of the value of the items specified in the attached Balance Sheet, updated pursuant to Orders 44.1, and 44.2 above, will represent the Applicant Husband’s share and the 40% balance will represent the Respondent Wife’s share.
44.4To ascertain the sum to be paid to the Respondent Wife (and to the Applicant Husband if the proceeds of the Suburb G sale are sufficient), the total value of assets and superannuation already held by each party in their respective sole names or where ownership is attributed pursuant to the Balance Sheet and these Orders, shall be deducted from each party’s percentage share.
44.5If applicable pursuant to these Orders, the following amounts shall then be deducted from the Applicant Husband’s sum:
44.5.1If applicable, the total amount of expenses incurred by the Applicant Husband which are not Agreed Expenses (as per Order 23.2), noting that the Applicant Husband’s intent is not to pay any expense unless provided for in these Orders as an Agreed Expense; and
44.5.2The Husband’s Loan Debt (only if applicable pursuant to Order 42.3, that is if the Husband’s Loan Accounts are still secured on the Suburb G property at time of sale, noting it is the husband’s intention to transfer those liabilities to the Town L Property);
44.6Finally, from the Respondent Wife’s sum following Order 44.4, the amount of $7,000 shall be deducted and added to the Applicant Husband’s sum (as the Respondent Wife’s compliance with the consent orders requiring her to meet legal costs for the Applicant Husband arising from his sole occupation application).
44.7Upon those calculations being made and once they are agreed in writing by the parties, the resulting sum for the Applicant Husband shall be known as the “Applicant Husband’s Final Sum” and the resulting sum for the Respondent Wife shall be known as “the Respondent Wife’s Final Sum”.
44.8Forthwith upon the calculations being made and agreed, and in the event that the Suburb G sale proceeds are sufficient to pay the Respondent Wife’s Final Sum, the parties shall each do all things and sign all documents necessary to direct and authorise the Suburb G conveyancer to distribute the funds between them accordingly (and only upon the Suburb G conveyancer receiving written instructions from both parties and/or their solicitors are they then to distribute the Final Sum to each party), and once the relevant payment has been paid to and received by the Wife, to direct and authorise the conveyancer holding the Region K Property Transfer form in escrow to complete the settlement of the transfer, in accordance with Order 39.2.
45.IT IS NOTED that in order to assist the parties and their conveyancing solicitors, the parties have agreed upon the methodology to apply as set out in the worked examples of the distribution of funds to implement the final division of assets shown in the models at Annexure B.
BALANCE OF PAYMENT OWING TO THE RESPONDENT WIFE’S FINAL SUM
46.That in the event that the Suburb G sale proceeds are not sufficient to pay the Respondent Wife’s Final Sum:
46.1The parties shall direct and authorise the Suburb G conveyancer to distribute the following amounts (and otherwise all remaining funds shall continue to be held by the Suburb G conveyancer):
46.1.1The sum of $7,000 to the Applicant Husband (as already deducted from the Wife’s total share pursuant to Order 44.6 above, in order to satisfy her legal obligation to pay the agreed legal costs for the Applicant Husband arising from his sole occupation application), to the Husband’s nominated bank account being Westpac bsb ending … account …77, and this Order is sufficient authority for the conveyancer to transfer the funds required in this Order to the Respondent Husband; and
46.1.2The sum of $8,000 to the controlled monies account established pursuant to Order 42.4, to be set aside in order to meet sales costs in the event of default sales of either the Town L or Region K Property (noting that where default sales are unnecessary this amount would instead be distributed to the Respondent Wife);
46.1.3The balance to the Respondent Wife as an early, part-payment of her Final Sum, to be known as “the Wife’s Part-Payment”;
46.2The Applicant Husband will pay the balance of the Respondent Wife’s Final Sum less the $8,000 set aside (pursuant to Order 46.1.2) no later than 30 days following the settlement of the sale of the Suburb G Property, and thereafter the parties shall each do all things and sign all documents necessary to:
46.2.1Direct and authorise P Lawyers to distribute the $8,000 previously put aside for default sale property expenses to the Respondent Wife, as to be the final payment making up the balance of the Respondent Wife’s Final Sum.
46.2.2Direct and authorise the conveyancer holding the Region K Property Transfer form in escrow to complete the settlement of the transfer, in accordance with Order 39.2; and
47.In the event that Applicant Husband cannot or fails to provide the whole of the balance of the payment then owing to the Respondent Wife in accordance with Order 46.2 above (for example, if Suburb G has sold for less than $970,000), then within 30 days from the date of settlement of the Suburb G Property:
47.1.1the Applicant Husband shall pay towards the shortfall the sum of at least $100,000 (or the amount of the shortfall in the event the shortfall is less than $100,000) to the Respondent Wife within 30 days of the date of settlement of sale of the Suburb G Property (from his drawings on the Husband’s Loan Accounts secured on the Town L Property); and
47.1.2Interest will accrue on the on the amount then outstanding to the Respondent Wife at the Family Law Rate;
47.1.3If the unpaid amount is less than $70,000 the Applicant Husband shall commence paying that sum (plus interest) to the Respondent Wife in instalments pursuant to Order 48.
47.1.4If the unpaid amount exceeds $70,000 then a default sale of the Town L Property and/or the Region K Property shall occur. For this purpose:
(a)Orders 49 – 53 apply in relation to the sale of the Town L Property and/or Orders 54–59 apply in relation to the Region K Property;
(b)If the Applicant Husband elects to sell the Town L Property before the Region K Property, he must first demonstrate to the Respondent Wife by providing all such documents that are requested by her (which are in his possession or control and which are relevant to the issue) that there is sufficient equity in the Town L Property to meet her remaining payment. If not, the Region K Property will be sold first.
48.In the event provided for in 47.1.3 above, the Applicant Husband shall pay the balance of the Respondent Wife’s Final Sum (that is, accounting for the $100,000 already paid (or the sum of the shortfall paid) and the $8,000 set aside), plus interest pursuant to Order 47.1.2, to the Respondent Wife within a further 18 months in equal monthly instalments (or via such instalments or lump sum amounts as are otherwise agreed in writing between the parties), and thereafter the parties shall each do all things and sign all documents necessary to:
48.1.1Direct and authorise P Lawyers to distribute the $8,000 previously put aside for default sale property expenses to the Respondent Wife, as to be the final payment making up the balance of the Respondent Wife’s Final Sum; and
48.1.2Direct and authorise the conveyancer holding the Region K Property Transfer form in escrow to complete the settlement of the transfer, in accordance with Order 39.2.
DEFAULT SALE OF TOWN L PROPERTY
49.That in the event that the Applicant Husband fails to provide the balance of the payment then owing to the Respondent Wife in accordance with Orders 46.2 and 47.1.1–47.1.3 above, and it is determined that the property to be sold pursuant to Order 47.1.4(b) is the Town L Property (“TL Default Date”), then within a further 30 days:
49.1P Lawyers shall be directed to transfer $8,000 from the controlled money account to the Applicant Husband for the purpose of sale costs and sale preparation costs (as outlined in Order 49.6);
49.2The Town L Property shall be listed for sale by private treaty;
49.3The parties shall appoint R Real Estate as the real estate agent (unless agreed otherwise in writing) (the “Default Town L Real Estate Agent”) and Z Conveyancing as the joint conveyancers (“Default Town L Conveyancer”);
49.4The listing or reserve auction price (if recommended by agent) for the Town L Property shall be as agreed between the parties and, failing agreement within 14 days of the First Default Date, the listing shall be as nominated by the Default Town L Real Estate Agent;
49.5The property will be marketed as recommended by the joint sales agent, and should the agent recommend that the property be listed without tenants, then the Applicant Husband shall authorise and direct the managing agent for the Town L Property to issue notice to the tenants to vacate that property to facilitate its sale, and the 30 day period referred to in Order 49 shall be extended by the period of time between notice being given and the tenants vacating;
49.6The Applicant Husband will arrange for the preparation of the Town L Property for sale using the funds set aside from the proceeds of the sale of the Suburb G property pursuant to Order 49.1, with such preparation to be as follows:
49.6.1To include payment of contractors to clean the Town L Property, necessary repairs, and other reasonable preparations for sale as recommended by the joint sales agent, with documentary evidence provided to the Wife within 4 days of receipt; and
49.6.2Not exceed the total sum of $8,000 (with any expense required once the $8,000 cap requiring the Respondent Wife’s agreement in writing before the work is commenced);
49.6.3Acceptance of an offer to purchase the Town L Property shall be as agreed between the parties, and failing agreement, the parties shall accept any offer to purchase the Town L Property that is no less than 90% of the listing or auction reserve price pursuant to Order 49.4.
50.The Applicant Husband shall:
50.1Provide all directions and authorities necessary to the Default Town L Real Estate Agent and Default Town L Conveyancer to communicate with, share all information with (including communications received or delivered in relation to the property and its settlement of sale) the Respondent Wife and the Applicant Husband in relation to the implementation of these Orders, and shall provide a copy of these Orders to that conveyancer for this purpose; and
50.2Co-operate in every way with the real estate agent in relation to the marketing of the Town L Property for sale including making the keys readily available, allowing inspection of the Town L Property at all times reasonably requested by the default Town L agent and ensuring the property is clean, neat and in good order; and
50.3Co-operate in every way with the default Town L conveyancing solicitor and shall execute the contract of sale and all other documents necessary to complete the sale of the Town L Property including transfer documentation upon its submission to them by the agent or the solicitor.
51.Upon settlement of the sale of the Town L Property, the Applicant Husband and the Respondent Wife shall authorise and direct the Default Town L Conveyancer (in writing) to distribute the proceeds of sale in the following manner and priority:
51.1Payment of the Default Town L Real Estate Agent’s commission and advertising or other expenses;
51.2Payment of conveyancing legal costs relating to the sale;
51.3Payment of rates and water adjustments;
51.4Payment of the amount required to discharge any home loan or home loans secured by mortgage against the Town L Property in the Applicant Husband’s sole name (with the total of these amounts to be calculated and noted as the “Husband's [Town L] Loan Debt”, to be subsequently deducted from the Husband’s share);
51.5Transfer of the sum of $71,000 for the Applicant Husband’s anticipated CGT to the controlled money account administered by P Lawyers (established pursuant to Order 43);
51.6The balance of the net sale proceeds shall be held in the Default TL Conveyancer’s trust account pending the parties calculating the final payment or payments due, and subsequently giving joint instructions for the final distribution and noting that for the purpose of the balance sheet only the net sale proceeds shall be included with all agreed and sale expenses having been paid out, excepting that the Husband's Town L Loan Debt amount that has been discharged pursuant to Order 51.4 shall be added to the net sales proceeds for the purpose of the balance sheet.
52.Before distribution of the remaining Town L sale proceeds, the necessary calculations shall be made in order to determine the payment due to the Respondent Wife and any remainder due to the Applicant Husband, to be carried out in the same manner as described for the distribution of Suburb G sale proceeds in Order 44, with the exception that:
52.1The property in question is the Town L Property;
52.2The value of the Town L Property on the Balance Sheet is updated to be the value of the net sale proceeds at Order 51.6 (that is, the sale price less the items at 51.1–51.3 and 51.5
52.3The value of the Suburb G Property sale proceeds for the purposes of the Balance Sheet is updated after further expenses provided for in these Orders;
52.4If applicable, the following shall be considered assets of the husband (and the total value of assets already held in his name shall be increased by these amounts):
52.4.1The Applicant Husband's Town L Loan Debt (if any); and/or
52.4.2Unspent funds from the $8,000 made available to the Husband for sale preparation expenses (if any); and/or
52.4.3Expenses incurred from the $8,000 referred to above that are not in accordance with these Orders (if any).
52.5The Wife’s Part-payment and the $7,000 received from the Wife’s share by the Husband as payment for agreed legal costs arising from the Husband’s sole occupation application (noting that this amount has already been deducted from her final share pursuant to Order 46.1, and will accordingly reduce her overall distribution by that amount) will be noted as already having been received by each party respectively, and will reduce the amounts which remain to be paid to each party in order to make up their total shares of the distribution.
53.Forthwith upon the calculations being made and agreed, the parties shall each do all things and sign all documents to:
53.1Direct and authorise the Town L default conveyancer (and P Lawyers, if required) to distribute the funds accordingly. Only upon the Town L default conveyancer (and P Lawyers if required) receiving written instructions from both parties and/or their solicitors are they to distribute the Final Sum to each party; and
53.2Direct and authorise the conveyancer holding the Region K Property Transfer form in escrow to complete the settlement of the transfer in accordance with Order 39.2.
DEFAULT SALE OF REGION K PROPERTY
54.In the event that the Town L sales proceeds are insufficient to meet the balance of the updated calculation of the Respondent Wife’s Final Sum, or in the event that after 12 months from the Town L Default Date the Town L Property has not sold, or if it is determined pursuant to Order 47.1.4(b) that the Region K Property will be sold first (before the Town L Property) (“the [Region K] Default Date”) then within a further 14 days:
54.1Any totals determined pursuant to Order 52.4 following the sale of the Town L Property shall be calculated (to be taken into account in the final calculations to determine the balance of the Husband’s and Wife’s Final Sums to be distributed);
54.2P Lawyers shall be directed to transfer $8,000 from the controlled money account to the Applicant Husband for the purpose of sale costs and sale preparation costs for the sale of the Region K Property;
54.3If already sold, the remaining Town L sale proceeds shall be transferred to and held in the controlled money account administered by P Lawyers (referred to in Order 43) until the sale of the Region K Property, or until the Applicant Husband provides the balance of any remaining unpaid amounts (to make up her Final Sum) to the Respondent Wife.;
55.Within 14 days of the Region K Default Date, the parties shall do all acts and things and sign all documents necessary to effect the sale of the Region K Property, unless otherwise agreed in writing, to be carried out in the same manner as described in Orders 49.2–51.6for the sale of Town L, with the exception that:
55.1The property in question is the Region K Property;
55.2With respect to the details of preparation and sale:
55.2.1The parties shall appoint a real estate agent by agreement in writing, and failing agreement within 21 days of the Second Default Date, the real estate agent shall be nominated by the President of the Real Estate Institute of NSW, at the request of the Respondent Wife (the “Default NSW Agent”);
55.2.2That within 14 days of the appointment of the default NSW agent the parties shall confer in order to agree upon a joint conveyancing solicitor, and failing agreement, the joint conveyancing solicitor shall be nominated by the President of the NSW Law Society, at the request of the Respondent Wife (the “Default NSW Conveyancer”), and for the purposes of complying with these orders the parties shall provide a copy of these Orders to both the Default NSW Agent and Default NSW Conveyancer forthwith upon engagement;
55.2.3Failing agreement on the listing price within 21 days of the Second Default Date, the listing price shall be as nominated by the agent; and
55.3With respect to distribution of the proceeds of sale following the sale of the Region K Property:
55.3.1In order to determine the amount to be paid to the controlled money account administered by P Lawyers (established pursuant to Order 43) to encompass both parties’ anticipated CGT, the parties are required to provide the other party and the default NSW conveyancer with a copy of their respective accountant’s CGT calculations;
55.3.2The resulting balance of the sale proceeds shall be held in the default NSW conveyancer’s trust account pending the parties calculating the payment due to the Respondent Wife and any remainder due to the Applicant Husband, and subsequently each giving written instructions for the final distribution;
56.For the calculations to determine the payment due to the Respondent Wife and any remainder due to the Applicant Husband, the values of all properties sold including the Region K Property are to be updated on the Balance Sheet as being the net proceeds of those sales (that is, their sale price less sales costs, sale preparation costs and CGT), noting the methodology adopted in the worked examples at Annexure B. Before distribution of the remaining Town L and Suburb G and Region K sale proceeds, the necessary calculations shall be made in order to determine the payment due to the Respondent Wife and any remainder due to the Applicant Husband, to be carried out in the same manner as for the Suburb G property (Order 44) and as amended by the calculations set out in relation to the sale of the Town L Property (Order 52).
57.Forthwith upon the calculations being made and agreed in writing, the parties shall each do all things and sign all documents to direct and authorise the default NSW conveyancer (and P Lawyers if required) to distribute the payment due to the Respondent Wife (and if applicable the payment due to the Applicant Husband) accordingly, noting that P Lawyers is to retain the funds for estimated CGT liability from the Region K Property sale (if any) for later distribution pursuant to Order 60.
58.That at any stage from the Town L Default Date or Region K Default date and prior to the sale of either the Town L or the Region K Property the Applicant Husband may tender to the Respondent Wife funds sufficient to make up the balance of the Respondent Wife’s Final Sum, and any property still on the market may be removed from sale, and the Region K Property will be transferred to the Respondent Husband in accordance with these Orders.
59.In the event provided for in Order 58, with respect to costs associated with sale preparations and listings or auction costs of either property that are already paid or owing from the sales proceeds held in the controlled money account administered by P Lawyers:
59.1Evidenced costs of sale (for example marketing, pest and building reports, preparation of contract and retaining conveyancer and real estate website listing fees) and costs of preparation for sale that have been incurred pursuant to these Orders (excluding capital improvements), shall be considered agreed joint expenses for the purposes of calculating the final payments; and
59.2All other such costs (if any) shall be considered to be for the Applicant Husband’s sole benefit and deducted from his Final Sum, unless otherwise agreed in writing;
59.3Any unspent funds (of the $8,000 amounts) distributed to the Husband in advance for sale preparation expenses relating to the Town L and/or Region K Properties (as in Orders 49.1 and 54.2) shall be deducted from his Final Sum.
LODGEMENT OF 2024 FY TAX RETURNS FOR PAYMENT OF CAPITAL GAINS TAX LIABILITIES
60.Orders 61 and 62 will apply to the Respondent Wife only in the unlikely event of the Region K Property being sold (and her CGT needing to be calculated and paid). Otherwise this Order applies only to the Applicant Husband in relation to the Suburb G and Suburb E properties, and Town L Property if applicable, in the unlikely event it is sold pursuant to the default Orders.
61.To facilitate the payment of the anticipated Capital Gains Tax liabilities referred to in Order 42.4 (and, if applicable, Order 51.5 in relation to the Town L Property and Order 55.3.1 in relation to the Region K Property), on or before 31 August 2024, the parties shall lodge their tax returns for the year ending 30 June 2024, wherein the sale and transfer of properties should take place. However, should the sale of a property take place after 30 June 2024 then the parties are to lodge their relevant tax returns by 31 August 2025 (and the provisions below shall apply but 12 months later). Upon doing so:
61.1Each party shall provide a copy of their 2024 Tax Return to the other within 2 days of its lodgement;
61.2Each party shall provide the other with a copy of their accountant’s calculation of the CGT liabilities which relate to the transfer/sale of the Suburb E and Suburb G properties (and the sale of the Town L and Region K properties if applicable);
61.3The parties shall provide to the other all documents from the ATO relating to the assessment and levying of CGT to them within 4 days of receiving same; and
61.4Upon completion of Orders 61.1–61.3, the parties shall authorise and direct the payment from the CGT Funds account held by P Lawyers an amount sufficient to pay the Applicant Husband’s CGT liabilities (and those of the Respondent Wife where applicable).
62.In the event that any surplus CGT Funds remain following the payment of the Applicant Husband’s Capital Gains Tax liabilities (and those of the Respondent Wife in the unlikely event of the sale of Region K Property), then P Lawyers is authorised and directed by this Order to disburse the balance of those funds after payment of their legal fees owed by each party, if any, in relation to administering the remaining CGT funds, as to 40% to the Respondent Wife less her legal fees to P Lawyers, and the balance shall be paid to the Applicant Husband being 60% less his legal fees owing to P Lawyers.
CONSENTS BY PARTIES
63.That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
SECTION 106A
64.That in the event that either party refuses, fails or neglects to execute any document or instrument necessary to give effect to these Orders within 7 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavit filed and served, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
RETURN OF APPLICANT HUSBAND’S DOCUMENTS, DIARIES AND STIHL CHAINSAW AND KEY TO POST OFFICE BOX
65.That contemporaneously with the signing of these Orders by the Respondent Wife, the Respondent Wife shall deliver to her solicitor’s office the following:
65.1the tools; and
65.2all keys to the Post Office Box in Town S, and
Noting that the Applicant Husband leases the post office box and is the sole lessee of that facility;
for collection by the Applicant Husband prior to the Applicant Husband signing the terms of settlement.
66.That ON A WITHOUT ADMISSIONS BASIS, within 7 days of the Respondent Wife locating the Applicant Husband’s suitcase the Respondent Wife return that suitcase and its contents with all copies of the diaries (which might be located in the suitcase) to an agent as nominated by the Applicant Husband.
OTHER PROPERTY
67.That except as otherwise provided in these Orders, the Applicant Husband shall be entitled, as against the Respondent Wife, to all items of property including real property, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in his name, possession or control, including but not limited to the following:
67.1Funds in any bank account in his sole name;
67.2His superannuation entitlements;
67.3His life insurance policy - Policy number …;
67.4His Motor Vehicle 1 motor vehicle registration number …; his Motor Vehicle 4 registration number …; and his Motor Vehicle 2 registration number …;
67.5His personal diaries and suitcase required to be provided to him pursuant to Interim Orders on 19 May 2023; and
67.6His entitlement to any distribution from the Estates of each of his parents, Mr H and Ms J.
68.That except as otherwise provided in these Orders, the Respondent Wife shall be entitled, against the Applicant Husband, to all items of property including real property, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in her name, possession or control, including but not limited to the following:
68.1Funds in any bank account as set out in her financial statement that are in her sole name;
68.2Her superannuation entitlements;
68.3Her motor vehicles:
68.4Furniture and effects in her possession;
68.5Her entitlement to any distribution from the Estate of Ms J; and
68.6Any inheritance or entitlement she has to the estate of each of her parents, Mr U and Ms T.
RELEASES
69.Subject to these Orders, both the Husband and the Wife hereby release the other party from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
RESTRAINT
70.The Respondent Wife is and shall be restrained from being present at the Region K Property unless with the written consent of the Applicant Husband.
LIBERTY TO APPLY
71.That either party have liberty to apply as to implementation, calculation of the Final sum due each party, and/or enforcement of these Orders upon the giving of 7 days written notice to the other.
COSTS
Subject to Order 44.6 above, which provides for costs payable to the husband arising from his successful interim sole application hearing to be paid to him from the Respondent Wife’s share, otherwise, each party shall each pay their own respective legal costs, and there will be no further Order in relation to Costs.
NOTATIONS
A.That pursuant to Section 81 of the Family Law Act 1975 (Cth) the parties intend these orders to be in full and final settlement of any financial claims each may have against the other for property settlement or spousal maintenance and each party undertakes to make no further claim against the other by way of property settlement or spousal maintenance.
B.That the provisions of Section 77A of the Act are not applicable in these proceedings.
C.The Applicant Husband considers and intends for the transfer of the Suburb E Property to the adult children of the marriage to constitute an advancement of their inheritance and to preclude a further claim of any sort against the Applicant Husband and his estate. The intention of the Applicant Husband in doing this is also to provide housing security to the adult children of the marriage.
D.It is noted that the Applicant Husband and the adult child, Ms B Laukkanen, have entered into a Deed of Release prior to the signing of these Orders which provides that Ms B Laukkanen will make no further claim against the Applicant Husband or his estate.
E.The parties have established an All Needs Protective Trust for Mx C which shall hold Mx C’s share of the Suburb E Property.
F.The Respondent Wife’s intention in establishing the Trust is to provide for Mx C’s housing security. The Respondent Wife’s agreement for property to be transferred in the Trust does not preclude any future inheritance from her.
G.The Applicant Husband’s intent in establishing the Trust for Mx C and providing them with the Suburb E Property as tenants in common in equal shares with Ms B Laukkanen, is to provide for Mx C’s housing security, and is by way of an advancement of Mx C’s inheritance.
H.It is noted that the Trustee of the Trust referred to in Notation E will be obligated by law to meet the Trust’s share of all expenses necessary for maintaining the property which is to provide Mx C’s housing security. In order to ensure this in addition to ensuring that the Trustee has the capacity to maintain compliance with the Trust’s tax obligations without stress, the Respondent Wife intends to loan a lump sum to the Trust, from her distribution from this settlement.
I.The parties acknowledge that these Orders are binding on the estate of each of them in the event of their death prior to the full implementation of the Orders.
Annexures
Images have been omitted to comply with s.121 of the Family Law Act 1975 (Cth)
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