Lumley and Gartside (No 2)

[2010] FamCA 242

FAMILY COURT OF AUSTRALIA

LUMLEY & GARTSIDE (NO. 2) [2010] FamCA 242

FAMILY LAW – PROPERTY – s 79(2) Just and equitable – Final property orders

APPLICANT: MS LUMLEY

RESPONDENT: MR GARTSIDE

FILE NUMBER: MLC 1041 of 2007

DATE DELIVERED: 18 MARCH 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 18 MARCH 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Brown with him Mr Dickson

SOLICITOR FOR THE APPLICANT: Susan Snyder

COUNSEL FOR THE RESPONDENT: Mr Thompson

SOLICITOR FOR THE RESPONDENT: McSwineys

Orders

IT IS ORDERED BY CONSENT:

1. THAT the parties do all things and sign all documents required to place on the market for sale:

   3.1the property known as “the farm” being the whole of the land more particularly described in Certificates of Title:

   (a)Volume … Folio …7;

   (b)Volume … Folio …8;

   (c)Volume … Folio …0;

   (d)Volume … Folio …6;

   (“the Farm”)

   3.2the property described in Certificate of Title Volume … Folio … (“the Cottage”).

2. THAT the terms and conditions of the sales of the Farm and the Cottage be as follows:

   2.1by public auction, both properties to be offered on the same day, with the sale of the Farm to be first in time (the Farm to be offered in separate parcels, if recommended by the selling agent and if not sold as a whole);

   2.2each party may bid for either property;

   2.3the agent shall be Mr N, N Real Estate, subject to the parties agreeing with the said agents on the commission payable (these orders not to be disclosed to the agent until such commission is agreed;

   2.4the parties will comply with all reasonable recommendations of the selling agents as to steps required to prepare the property for sale;

   2.5the auction date be 1 May 2010 (or such other date as the parties may agree);

   2.6the husband be at liberty to attend the property on the day of the auction and to prepare the property for sale, provided such attendance is accompanied by the Agent and is required to meet an agent’s recommendation and the wife has consented to such attendance (the parties agreeing that any such attendance shall constitute an agreed exception to the Magistrates Court undertaking given by the husband);

   2.7the reserve price be $750,000 for the Farm and $150,000 for the Cottage unless otherwise agreed;

   2.8the conveyancing be conducted by S Conveyancing;

   2.9any farm plant and equipment remaining on the Farm and the Cottage shall be offered for sale with the properties.

3. THAT liberty be reserved to both parties to apply in respect to the terms and conditions of the sales.

4. THAT upon settlement of the sale of the Farm, the proceeds be applied:

   4.1first to pay costs, commissions and expenses of the sale (including any costs of preparing the property for sale which are to be paid to the service provider if unpaid or reimbursed to the party who paid such expense, as the case may be);

   4.2second, the balance be divided as to 46.25% to the wife and 53.75% to the husband.

5. THAT upon settlement of the sale of the Cottage, the proceeds be applied:

   5.1first to pay costs, commissions and expenses of the sale (including any costs of preparing the property which are to be paid to the service provider if unpaid or reimbursed to the party who paid such expense, as the case may be);

   5.2second the balance be paid into the K Superannuation Fund (“the Super Fund”), that entity being the current owner of the Cottage, via the husband and wife in their capacities as trustees of the Super Fund.

6. THAT following settlement of the sale of the Cottage:

   6.1the parties jointly instruct the Super Fund’s current accountant to:

   (a)calculate Capital Gains Tax/Loss arising from the sale of the Cottage;

   (b)prepare tax returns for the Super Fund for the years ending 30 June 2009 and 2010;

   (c)recalculate the parties’ respective members’ entitlements (the parties agreeing that on the basis of the current book value of the cottage, their current members’ entitlements are approximately $627,000 to the wife and $256,000 to the husband;

   the costs of such works to be met equally by the parties

6.2THAT thereafter:

(a)the husband’s entitlement be rolled out to a complying superannuation fund of his choice, or, at his election, paid to him (if he is eligible to be paid such sum absolutely) such entitlement to be satisfied by an in specie distribution of shares if agreed between the parties, and failing agreement all shares of the Super Fund be sold, the members’ account entitlements again recalculated (on the same terms as in paragraph 6.1) and the husband’s entitlement be satisfied in cash; and

(b)the husband resign as trustee of the Super Fund.

6A. THAT pending compliance with paragraph 6, the husband and wife each be and are hereby restrained from making any further contributions to the Fund.

1. THAT the parties do all things and sign all documents to:

   7.1cause to be paid to the wife the funds currently held with Rodwells (in the sum of approximately $11,800);

   7.2cause to be transferred to the wife absolutely (at her expense, if any) the horses T and P.

2. THAT on 22 March 2010 at 10.00 a.m. the husband make available for collection by the wife at her address the following:

   8.1handwritten notes on Parelli horsemanship seminars (if located);

   8.2wife’s personalized golf clubs and electric buggy;

   8.3wife’s bike;

   8.4the Horse Float (which is to be transferred to the wife at her expense).

3. THAT unless otherwise specified in these orders (save for enforcement purposes):

   9.1each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the contents in and on the Farm being deemed to be in the possession of the wife and the contents of B property and the horse float being deemed to be in the possession of the husband);

   9.2each party retain their respective superannuation entitlements;

   9.3insurance policies remain the sole property of the owner named thereon;

   9.4each 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 these orders;

   9.5any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

4. THAT all extant applications be otherwise dismissed and the matter be removed from the Docket of Young J.

5. THAT the documents produced to the Court pursuant to subpoena be forthwith returned by the Subponeas Clerk, Melbourne Registry, Family Court to the person or organisation having produced those documents to the Court.

6. THAT the following dates be vacated:

   (a)the mention on 28 July 2010 at 10am; and

   (b)the trial listed for 6 September 2010

7. THAT paragraph 16 of the orders made 17 March 2010 be discharged.

IT IS CERTIFIED

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

IT IS NOTED

A.THAT the parties intend these orders shall as far as practicable finally determine their financial relationship and avoid further proceedings between them.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1041 of 2007

MS LUMLEY

Applicant

And

MR GARTSIDE

Respondent

REASONS FOR JUDGMENT

1. The matter of Gartside & Lumley was before me for a hearing of at least three days, and perhaps in reality more.  I have previously made orders as of yesterday adjourning the hearing and reserving five days commencing Monday, 6 September 2010 for that purpose.  At the end of yesterday’s proceedings in court the various experienced counsel and solicitors in this matter conferred with their clients and settlement discussions commenced which have been continued overnight and for the early part of today and I am advised that a compromise has been reached.  I have had the minutes of proposed consent orders in their amended and handwritten form presented to me.  Those orders are executed by the parties and by consent.  Minutes of final orders, pursuant to section 79, are now sought. 

2. I have a substantial knowledge of the facts and finances in this case.  The proposed settlement terms provide for the wife to receive approximately 45 per cent of the overall assets and financial resources net of liabilities.  The husband therefore receives approximately 55 per cent of the available asset pool.  Over the course of argument yesterday it became clear that there were various proposed financial add-backs sought by the wife on the basis of past alleged financial conduct and transactions of the husband.  Those matters are all compromised by this settlement. 

3. I am now asked to vacate the hearing date that I had set for Monday, 6 September and the further case management date set for 28 July.  I will make both such orders.  I will also vacate paragraph 16 of my orders of yesterday where costs of counsel were fixed, but the question of payment was reserved to me as the trial judge.  Those matters are all now concluded and those costs orders as to the fixing of costs will be discharged by these orders when I receive the final copy from junior counsel for the wife on behalf of all counsel.

4. As I said, I am aware of the affidavits in this matter.  I am aware generally of the contributions made over the period of the marriage, both financial and otherwise of the various applicable section 75(2) factors, primarily as to the financial circumstances of the parties, their health and wellbeing, and related matters of relevance.  The orders are understood and agreed to by the parties.  They have each consented to the auction of the farm property and cottage on the basis that they each have a right to bid and the market forces will determine who is the purchaser of the property, though of course there is every possibility a third party at arm’s length will have the opportunity at public auction to purchase.  All those matters are known and the reserve price is identified in paragraph 2.7 of the proposed consent orders. 

5. I am further advised that careful and professional attention has been directed to superannuation and to the proper and tax effective means of the splitting of the superannuation as provided for in paragraph 6, and those matters do not require any further court investigation. As an overview, I will endorse the consent orders. I will declare that they are just and equitable within the meaning of section 79(2) of the Family Law Act 1975.  I have asked of both counsel whether their clients understand the orders and agree to they being made as consent orders of the court.  The answer was in each case in the affirmative.  The parties have had the benefit of experienced solicitors and counsel in this matter, and I am more than satisfied that the orders are both appropriate and just and equitable.

6. I will therefore pronounce final orders on the basis of the document before me which is to be re-engrossed and forwarded by email transmission this day.  Those consent orders will discharge all extant applications.  The matter will be removed from my docket.  All subpoena documents will forthwith be returned to the person or organisation from whom they were initially subpoenaed, and there will be certification, including for senior counsel for the wife.  Finally, the section 81 notation as to finality will accompany the orders as was agreed.

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: