LITTLE & LITTLE

[2020] FamCA 740

FAMILY COURT OF AUSTRALIA

LITTLE & LITTLE [2020] FamCA 740

FAMILY LAW – PROPERTY – CONSENT – Where the wife seeks to vary final consent orders made in May 2016 pursuant to s 79A of the Family Law Act 1975 (Cth) – Where the parties reached agreement on the morning of the trial – Where the Court is satisfied the consent orders under s 79A are just and equitable – Orders made per Minutes of Consent.

Family Law Act 1975 (Cth)

APPLICANT: Ms Little

RESPONDENT: Mr Little

FILE NUMBER: BRC 10173 of 2012

DATE DELIVERED: 3 September 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 3 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Galloway

SOLICITOR FOR THE APPLICANT: HCM Legal

COUNSEL FOR THE RESPONDENT: Mr Laing

SOLICITOR FOR THE RESPONDENT: Hofstee Lawyers

Orders

IT IS ORDERED BY CONSENT THAT:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004 (Cth), Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT:

1. All outstanding applications be otherwise dismissed and removed from the pending cases list.

IT IS DIRECTED THAT:

1. The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

BY CONSENT IT IS ORDERED ON A FINAL BASIS:

1. That, in full and final settlement of all issues as between the parties with respect to the Orders made by the Honourable Justice Tree on 10 May 2016, and pursuant to section 79A(1A) of the Family Law Act 1975, the Orders made by Justice Tree on 10 May 2016 be varied by excising orders (11) and (12) replacing them as follows:

   (11)that the husband and wife, in the capacities as trustee of the Super Fund, do all acts and things and sign all necessary documents to cause, in accordance with their entitlements, the allocation of their individual member balances in the Super Fund as at 30 June 2020 or such other date as may be advised by the accountant.

   (12) that, in accordance with section 90XT(1)(b) of the Family Law Act 1975:

   (a)the wife is entitled to be paid a specified percentage, being 42.5% (forty-two point five) per cent, out of the husband’s interest in the Super Fund, and,

   (b)that the husband’s entitlement (or the entitlement of such other person to whom a splittable payment may be made out of the husband’s interest) in the Super Fund is correspondingly reduced.

   2.That within seven (7) days of this Order, the Wife shall resign as director, shareholder and/or member of F Pty Ltd. and G Pty Ltd.

   3.        That the parties bear their own costs

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10173 of 2012

Ms Little

Applicant

And

Mr Little

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Little (“the wife”) and Mr Little (“the husband”) finally separated in mid-2012 bringing an end to a 22 year relationship and marriage which produced two now adult children.

2. In about November 2012, the husband instituted property settlement proceedings which were brought to an end by orders made by consent on 10 May 2016.

3. The orders of 10 May 2016 speak for themselves, but in summary, pursuant to those orders the wife was to receive payments over the following three year period or so totalling $1.1 million and was to otherwise retain some modest assets, whilst in exchange the husband was to retain effectively the business interests of the parties held in a number of entities.

4. It seems that at the time of those orders it was understood that the relevant business interests, and in particular the family trust held by the parties, was worth several million dollars.

5. In the result, for reasons it is not necessary for me to engage in, other than the first payment provided for of $270,000 the wife did not receive any further payments, and for his part, the husband did not receive the benefit of the value thought to exist in the business interests, the relevant business ultimately going into liquidation.

6. On 29 September 2017, the wife instituted proceedings pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) seeking to have the subject orders set aside or varied. As those proceedings progressed, the only available asset was the self-managed superannuation fund currently totalling about $611,000.

7. The wife’s claim under s 79A of the Act was disputed by the husband and the trial of that proceeding was set to commence before me today.

8. In the result the parties, with the assistance of their legal representatives, have been able to reach agreement on what should occur, that agreement being reflected in proposed consent orders submitted to the Court signed by the parties and their lawyers.

9. Section 79A (1A) provides as follows:

   A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

10. Self-evidently the proposed orders are with the consent of all of the parties to the proceedings within the meaning of the section. To the extent that it is necessary to do so, I observe the orders to be appropriate within the meaning of the section on the basis that the parties have been able to reach this consent agreement with the assistance of experienced lawyers who have taken this morning to engage in negotiations and, obviously, advice to the parties.

11. I am satisfied on the submissions made to me that the percentage 42.5 per cent which the wife is to receive by way of a split from the superannuation fund is arrived at by reference to considerations about the entitlement if the Court were to revisit s 79 orders, but more fundamentally, the commerciality of the position of avoiding risk in terms of the potential outcome of contested s 79A proceedings.

12. I am therefore satisfied it is appropriate to make the orders with the consent of the parties and I make those orders and place the signed orders with the file.

I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 4 September 2020, edited to correct grammatical errors and some infelicity of expression.

Associate: 

Date:  4 September 2020