Long and Chang

[2010] FamCA 102

FAMILY COURT OF AUSTRALIA

LONG & CHANG [2010] FamCA 102

FAMILY LAW – PROPERTY – s 79 – s 79(2) declaration that the orders are just and equitable – Understanding by both parties of the orders and division of property thereunder

APPLICANT: MR LONG

RESPONDENT: MS CHANG

FILE NUMBER: MLC 1074 of 2007

DATE DELIVERED: 9 FEBRUARY 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: Young J

HEARING DATE: 9 FEBRUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr NORTH SC

SOLICITOR FOR THE APPLICANT: OAKFAIR LAWYERS

COUNSEL FOR THE RESPONDENT: Mr TREE SC

SOLICITOR FOR THE RESPONDENT: R & G LAWYERS

Orders

IT IS ORDERED BY CONSENT:

1. THAT the Wife retain the following assets and the Husband relinquish all his right, title and interest, if any, in:

   a)the property situated at and known as T property in the state of Victoria, Australia;

   b)the Wife's interest in her properties in Malaysia situated at and known as Lot 2567 and Lot 2021;

   c)the Wife's Hock Sen shares and BT Asian shares and OM-IP shares (and all dividends related to the same);

2. THAT the Wife indemnify the Husband against all liabilities, loans, mortgages, rates and taxes of whatsoever nature and kind with respect to the properties and shares referred to in order 1 hereof.

3. THAT save as provided for in these orders each party retains for his and her sole benefit such interest as he and she now has in any superannuation fund.

4. THAT the Wife relinquish and hereafter transfer any right, title and interest she now has in the Husband's professional practice in V and the Husband hereafter indemnify the Wife against all liabilities, loans, mortgages, rates and taxes with respect to that professional practice.

5. THAT on or before the settlement date being that date forty-five (45) days after the date of these orders:‑

   a)the Wife, at the expense of the Husband, transfer to the Husband all her right, title and interest in the former matrimonial home known as and situated at N, in the state of Victoria, Australia and provided always that the Husband indemnify the Wife against all liabilities, loans, mortgages, rates and taxes of whatsoever nature and kind with respect to the said property;

   b)each of the parties do all acts and things and sign all documents necessary to enable the Wife to cause her interest in the Long Family Superannuation fund to be rolled over and transferred to a Superannuation fund (including her interest created by order 6 hereof) of her choosing;

   c)the Wife do all acts and things and sign all documents necessary to assign to the Husband all right or benefit she now has pursuant to the Long Family Trust including any credit standing in her favour in any loan account with the Trustee of that trust;

   d)the Wife do all acts and things and sign all documents necessary to resign any office now held by her in Z Pty Ltd and thereafter do all acts and things and sign all documents necessary to assign to the Husband any interest she now has in any share in the said company upon the happening of the same the Husband indemnify the Wife against all liabilities of the company, whether in its capacity as trustee or howsoever, including liabilities for taxation that may arise as a consequence of her having held office in the company or been a member;

   e)that the Husband pay to the Wife the sum of $185,671.

6. THAT this order is binding on the Trustee of the Long Family Superannuation Fund ("The Fund"):‑

   a)that the interest of the Husband in the Fund will be split so as to permit the creation of a superannuation interest for the Wife;

   b)that in accordance with Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the Husband in the Fund, the Wife will be entitled to be paid $90,096 of the splittable payment and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order;

   c)that this Order binds the Trustee of the Fund and takes effect from the operative time being the fourth business day after the date of service of these Orders on the Trustee;

   d)that the Trustee of the Fund in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, do all such acts and things and sign all such documents as are necessary to calculate the entitlement of, and make payment to the Wife in accordance with this Order.

7. THAT until the happening of any of:

   a)the rollover into another superannuation fund of the payment split created by this Order; or

   b)the Wife satisfies a condition of release and has been paid the payment split which is created by this order; or

   c)the Wife executes a waiver of right within the meaning of Section 90MZA of the Family Law Act 1975 in relation to the payment split created by this Order hereof;

   d)the Husband be and is hereby restrained by himself, his servants and/ or his agents from executing a death benefit nomination in favour of any person or doing any other acts or things which would render any part of his interest in the Fund a "non-splittable payment" within the meaning of regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001 including executing any binding death benefit nomination in favour of any child who is an eligible beneficiary within the meaning of the said regulations and the Trustee of the Fund give effect to this order.

8. THAT in addition to any other right the Wife may have, in the event that the Husband defaults in complying with Order 5(e) hereof and provided always that the Wife is not herself in default of any order herein she is appointed Trustee for sale of the property referred to in 5(a) hereof and after the payment of all costs of sale shall apply the net proceeds as follows:‑

   a)in payment of any monies due to her under 5(e) together with any interest pursuant to the Act;

   b)the remainder to the Husband.

9. THAT pending the payment of the sum specified in Order 5(e), or any sale pursuant to Order 8:‑

   a)the husband have the sole right to occupy the property at N;

   b)during such right of occupation, the Husband pay all rates, taxes and like outgoings of the said property;

   c)the parties hold their respective interests in the said property upon trust pursuant to these orders;

   d)neither party encumber the said property without the consent in writing of the other party.

10. THAT unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under this or any subsequent order:‑

    a)each party be solely entitled to the exclusion of the other to all property in the possession of that party as at the date of this order;

    b)monies standing to the credit of the parties in any bank account are to become the property of the account holder;

    c)each party hereby retains all shares and dividends in his or her respective name to the exclusion of the other;

    d)all insurance policies, if any, are the sole property of the owner named therein;

    e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to the terms of these orders;

    f)any joint tenancy of the parties in any real property or personal estate is hereby expressly severed.

11. THAT paragraph 10 of the orders of Young J pronounced on 22 October 2008 be forthwith discharged.

12. THAT all documents and records subpoenaed to the Court be forthwith returned by the Subpoena Clerk, Melbourne Registry to the person or organisation who produced same to the Court.

13. THAT the amended Application of the Applicant filed 21 October 2008 and the wife's Response thereto be otherwise dismissed and the proceedings be removed from the Docket of Young J.

14. THAT the extempore reasons for Judgment delivered by Young J on 9 February 2009 be placed on the Court file and be made available to the parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Senior Counsel for each of the husband and wife.

THE COURT NOTES

A.THAT the parties intend and have agreed

a)out of the monies received and retained by each the Husband and Wife have agreed that the Husband shall apply not less than $20,000 to the expenses associated with the education of their son D and the Wife apply not less than $20,000 towards the expenses associated with the education of J.

b)For so long as D continues to reside with the Husband and J continues to reside with the Wife the Husband is solely financially responsible for the maintenance of the younger child of the marriage namely D born on the …/04/1991 and the Wife is solely financially responsible for the maintenance of the older child of the marriage namely J born on the …/08/1989 (until each child completes his first tertiary degree) and the Husband indemnifies the Wife with respect to any claim that D may make upon her and the Wife

B.THAT the balance of the proceeds of sale of the property at H have previously been distributed between the parties and it is intended will remain the property of the parties as provided for in these orders.

C.That the parties intend these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.

IT IS NOTED that publication of this judgment under the pseudonym Long & Chang is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1074 of 2007

MR LONG

Applicant

And

MS CHANG

Respondent

REASONS FOR JUDGMENT

1. The proceedings in this matter were listed before me for a six-day defended hearing. The matter has resolved and I have now minutes of consent orders which I am asked to declare to be just and equitable and then to make orders pursuant to section 79 of the Family Law Act 1975. Mr North of Senior Counsel appears for the husband; Mr Tree of Senior Counsel appears for the wife. The parties have been in court throughout the proceedings, as have the solicitors.

2. The matter commenced and brief evidence-in-chief was given by the husband, and he was to be cross-examined when this matter resolved.  I have allowed the Senior Counsel time to prepare and present minutes of consent orders.  I am satisfied that each of these parties, with their professional background, have certainly the time, understanding and intellect to fully comprehend the terms of this settlement.  I have asked, and it has been acknowledged, that they know and understand the financial commitments which they have now had explained to them and have made by virtue of these consent orders.

3. Exhibit 4 in the proceedings was a balance sheet identifying the assets and liabilities of the parties which were built up over a long marriage period, of some 23 years.  There are two adult children.  I do not recite the facts of this matter as I have read the affidavits and have had extensive discussion with counsel at the commencement of the case and am wholly familiar with the orders sought by each party in their amended application and amended response documents and they way in which the case was outlined to the court.

4. On the basis of that balance sheet, there was a net pool of approximately $3.7 million.  There is, in reality, one only liability, being the mortgage obtained by the wife upon the home at T, which is now tenanted, but is in the wife's name and will be received by her pursuant to this settlement.  The other real property, superannuation and shares and personal chattels, are all identified within that balance sheet document, which I accept as being carefully, indeed exhaustively, prepared by solicitors and Senior Counsel over the first day or thereabouts of this hearing.

5. I am aware in substantial detail of the contributions made, or allegedly made, by each of the parties and their extended family to this asset pool.  It is unnecessary for me to make particular findings, but I record that I have carefully read the voluminous affidavit material, and the issues that were before the court were fairly identified.  

6. On the basis of the orders now before me, and on the joint application of Senior Counsel, the wife is to receive or retain assets to a percentage of 42.5 per cent of both superannuation and non-superannuation.  In particular, she is to retain the T property, her shareholding and investments, the other properties in Malaysia, and personal assets and chattels identified in the consent orders, together with the payment of a sum of money of $185,000 approximately, and a superannuation split of a self-managed fund, which is identified within the orders.

7. The husband, for his part, retains the N property and the balance of his assets, superannuation, and the trust structures and other moneys and person property identified within the balance sheet.  I accept that the division of assets is practical in terms of the specie thereof and is very appropriate in terms of quantum.  The T property liability will lie with the wife.  Other liabilities lie with particular assets to be retained by the parties, pursuant to the general order that each of them are to be liable for and to indemnify the other against any liability as to that property retained respectively by each of them.

8. I am separately advised, but do not further enquire, that there is an independent financial agreement based upon spousal maintenance as between the parties, which has been signed and accepted, and that is a further background fact to the determination of a just and equitable outcome.   Insofar as there are exhibits before the court by way of a part-heard matter, those exhibits are not original documents and they can remain on the file. 

9. I will direct that all of the subpoenaed documents be otherwise forthwith returned by the Family Court Subpoenas Clerk to the person or organisation who produced such documents to the court.  I am sure the parties were substantially assisted by Senior Counsel now engaged in this matter, and by instructing solicitors, and this is an  outcome that is absolutely within the framework of a just and proper determination.

10. For those reasons, and on an ex tempore basis and with no more detail required, I formally declare within section 79(2) of the Family Law Act 1975, that these consent orders now before me are just and equitable in their division of property for the purposes of section 79. I will request counsel to make the further procedural and other amendments to the consent orders and forward by email transmission to my associate a completed and agreed final form of orders that I will sign off upon this afternoon, or tomorrow as the case may be. But from the parties' point of view, these orders are now final. I declare them to be final, and that means that all extant applications in this matter are otherwise dismissed.

11. The matter is not to come back to court, that means save for the appropriate issues that solicitors must deal with, there should be no more court involvement and only limited expense for the future to finalise these matters for the parties.  I did have the benefit in this case of letters drawn pursuant to Rule 19.04, but I have returned both of those to Senior Counsel to forward to their instructing solicitors.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: