Lund & Whittall (No 2)

Case [2025] FedCFamC1F 76

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lund & Whittall (No 2) [2025] FedCFamC1F 76

File number(s): DNC 518 of 2022
Judgment of: BERMAN J
Date of judgment: 14 February 2025
Catchwords: FAMILY LAW – PROPERTY – Long relationship – Equal contributions – Where the husband agrees to most of the wife’s orders sought – Where the area of dispute that remains to whether a settlement sum is payable and the time of the transfer of a property – Where the balance sheet is mostly agreed – Consideration of the value of the husband’s interest in multiple business entities – Consideration of the single expert valuation report – Consideration of the unreliability of the husband’s evidence – Where the husband relies on the valuation report – Where the wife disputes the same – Where the Court finds the husband’s value in the entities is nil – Consideration of s 90SF factors – No adjustment – Orders.
Legislation: Family Law Act 1975 (Cth) ss 90SF, 90SM
Cases cited:

Bevan & Bevan (2013) FLC 93-545

Commonwealth v Milledge (1953) 90 CLR 157

Lenehan & Lenehan (1987) FLC 91-814

Little & Little (1990) FLC 92-147

Lund & Whittall [2024] FedCFamC1F 271

Stanford & Stanford (2012) 247 CLR 108
Division: Division 1 First Instance
Number of paragraphs: 153
Date of hearing: 26, 28, 29 August 2024 & 20-21 January 2025
Place: Heard in Darwin and Adelaide, delivered via MS Teams in Adelaide
Counsel for the Applicant: Ms Farmer
Solicitor for the Applicant: AFL Withnalls Lawyers
Counsel for the Respondent: Mr Tredrea
Solicitor for the Respondent: McQueens Solicitors

ORDERS

DNC 518 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS LUND

Applicant
AND:

MR WHITTALL

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

14 FEBRUARY 2025

UPON NOTING THAT this is an order to which s 90ST of the Family Law Act 1975 (Cth) applies for the purpose of finally determining all property matters between the parties and to avoid any further proceedings between them.

THE COURT ORDERS THAT:

1.Subject to compliance with paragraph 6 hereof, within twenty-four (24) months of this order (“the settlement date”), Mr Whittall (“the respondent”) and Ms Lund (“the applicant”) do all acts and sign all such documents as are necessary to enable the transfer to the applicant on the date, and in the manner as determined at the expense of the applicant, all of the respondent’s right, title and interest in the property situate at B Street, Suburb C, Region D more particularly described as Lot … Volume … Folio … (“the Suburb C property”).

2.To complete the transfer of the respondent’s interest in the Suburb C property, the following shall apply:

(a)Settlement will take place on the settlement date;

(b)The transfer documentation will be prepared by the applicant’s solicitor and delivered to the respondent (or his solicitor) for signature by the respondent, no later than fourteen (14) days prior to the settlement date;

(c)The parties will sign all necessary authorisations and…

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Lund & Whittall (No 2) [2025] FedCFamC1F 76
Case
[2025] FedCFamC1F 76
Decision Date

CaseChat Overview and Summary

In the case of Ms Lund v Mr Whittall, the primary focus was on determining the property settlement between the parties following their separation after 21 years of cohabitation. The court was tasked with resolving the narrow dispute over the payment of a settlement sum and the timing for the transfer of the Suburb C property. The court had to consider the value of the husband's interest in multiple business entities, the reliability of the evidence presented by both parties, and the application of section 90SF factors of the Family Law Act 1975 (Cth).

The court found that the husband's value in the entities was nil and that there should be no adjustment based on section 90SF factors. The court emphasized that the husband had made considerable concessions, particularly by not seeking to readjust the substantial difference in superannuation entitlements between the parties. The court concluded that the property should be divided equally, with the applicant retaining the majority of the available property, including her superannuation entitlements. The court ordered that the respondent would discharge the mortgage over the Suburb C property within 24 months, but deferred the decision on whether the mortgage should be discharged in 60 days or 24 months as sought by the respondent.

The court made several orders, including the transfer of the respondent's interest in the Suburb C property to the applicant within 24 months, the respondent's obligation to pay all mortgage repayments as they fall due, and the applicant's responsibility to indemnify the respondent against all claims related to the Suburb C property. The court also ordered that the applicant would retain certain assets, including her superannuation entitlements, while the respondent would retain his shareholdings and interest in business. The parties were jointly and severally liable for outstanding school fees, and each party was required to indemnify the other against various liabilities and demands.

This case underscores the importance of accurately valuing assets, the reliability of evidence, and the application of relevant statutory factors in determining property settlements in family law proceedings.

Orders

Orders of the court

DNC 518 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS LUND

Applicant

AND:

MR WHITTALL

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

14 FEBRUARY 2025

UPON NOTING THAT this is an order to which s 90ST of the Family Law Act 1975 (Cth) applies for the purpose of finally determining all property matters between the parties and to avoid any further proceedings between them.

THE COURT ORDERS THAT:

1. Subject to compliance with paragraph 6 hereof, within twenty-four (24) months of this order (“the settlement date”), Mr Whittall (“the respondent”) and Ms Lund (“the applicant”) do all acts and sign all such documents as are necessary to enable the transfer to the applicant on the date, and in the manner as determined at the expense of the applicant, all of the respondent’s right, title and interest in the property situate at B Street, Suburb C, Region D more particularly described as Lot … Volume … Folio … (“the Suburb C property”).

2. To complete the transfer of the respondent’s interest in the Suburb C property, the following shall apply:

(a) Settlement will take place on the settlement date;

(b) The transfer documentation will be prepared by the applicant’s solicitor and delivered to the respondent (or his solicitor) for signature by the respondent, no later than fourteen (14) days prior to the settlement date;

(c) The parties will sign all necessary authorisations and directions (with such documents to be prepared by the applicant’s solicitor) to enable the mortgagee to release to the applicant’s solicitors any documents held by the mortgagee relating to the insurance policy in respect of the Suburb C property and deliver such authorisation to the mortgagee no later than ten (10) days prior to settlement.

3. Pending the transfer of the respondent’s interest in the Suburb C property to the applicant:

(a) The applicant shall have the sole right to occupy the Suburb C property and during such right of occupation, she shall be responsible for all rates and outgoings as they fall due up to and including the settlement date;

(b) The parties hold their respective interests in the Suburb C property upon trust pursuant to these orders; and

(c) Neither party shall encumber the Suburb C property without the consent in writing of the other party.

4. On settlement, the respondent will provide to the applicant and/or her solicitor the following:

(a) The Certificate of Title for the Suburb C property;

(b) All transfer documents duly signed;

(c) All keys, codes or devices in the possession or control of the respondent for all locks, gates, doors and security systems; and

(d) All records and documents relating to the purchase of the Suburb C property together with any improvements carried out since that acquisition, such documents being necessary to be retained for the calculation of the index cost base of the Suburb C property to assess any future capital gains tax liability that may be levied or applied.

5. The applicant shall from the settlement date indemnify the respondent against all claims, demands, proceedings or judgments in respect of liability pursuant to all rates, taxes and other outgoings pertaining to the Suburb C property of whatsoever nature and kind.

6. Up until the transfer of the Suburb C property pursuant to paragraph 1 of these orders, the following shall occur:

(a) The respondent shall pay all repayments to E Bank, dealing number …17 as and when they fall due up to the date of the discharge of the mortgage PROVIDED THAT if the respondent defaults in the payment of any mortgage payment and the default shall extend for more than fourteen (14) days then the applicant is entitled to bring enforcement proceedings seeking that the outstanding mortgage is to be discharged forthwith;

(b) The parties shall sign an authority and any other documents required by the mortgagee to release the mortgage; and

(c) The applicant will arrange for the mortgagee to attend on the settlement date for the purpose of delivery of title, executed release of mortgage and other required documentation.

7. The applicant shall retain the following assets, liabilities and investments to the exclusion of the respondent:

(a) All funds standing to the applicant’s credit in E Bank account …32;

(b) Household contents currently held in the applicant’s possession;

(c) Motor Vehicle 1;

(d) All superannuation member entitlements held in Super Fund 1, member number …; and

(e) All superannuation member entitlements held in Super Fund 2, member number ….

8. The respondent shall retain the following assets, liabilities and investments to the exclusion of the applicant:

(a) All funds standing to the respondent’s credit in E Bank account #...09;

(b) All shareholdings and interest in business;

(c) Household contents currently held in the respondent’s possession; and

(d) All superannuation member entitlements held in Super Fund 1.

9. Subject to any agreement reached between the parties and DD School, they are each jointly and severely liable for the outstanding school fees currently in the sum of $14,720.

10. Within fourteen (14) days of the date of these orders the respondent will do all things necessary to transfer to the applicant all of the right, title and interest in Motor Vehicle 1 with the applicant to be declared the sole legal and beneficial owner of the motor vehicle.

11. The applicant and respondent each keep the other indemnified from and against all claims, actions, suits, and demands arising out of or in connection with the following liabilities:

(a) All taxation liability, actions, claims, or demands by the Commissioner of Taxation, in relation to any contingent, pending or outstanding taxation liability (including but not limited to income tax, capital gains tax, goods and services tax or fringe benefit tax) that the applicant and respondent may personally incur or incur via any entity which they have an interest or control;

(b) All credit cards;

(c) All home loans;

(d) All personal loans; and

(e) All individual liabilities.

12. Each party shall do all acts and things reasonably required by the other including:

(a) the signing or execution of all necessary documents to give effect to the provisions of this order within fourteen (14) days of being requested to do so;

(b) if either party refuses or neglects to sign or execute and return a document within fourteen (14) days of a written request to do so then a Judicial Registrar of Senior Judicial Registrar of this Honourable Court is hereby appointed under s 106A of the Family Law Act 1975 (Cth) to sign and execute such documents on behalf of that party upon lodgement of such document and the filing of an Affidavit of a solicitor on behalf of the requested party as to the said neglect or refusal.

13. Pending the transfer of the Suburb C property pursuant to paragraph 1 of these orders, the respondent is restrained both in his individual capacity and as a Director from the following:

(a) Doing any act or thing to alter the entitlement to the office charges as income of F Pty Ltd or the receipt of or entitlement by F Pty Ltd to rental income;

(b) Altering and directing the income of F Pty Ltd to be paid or received by any bank account other than the ANZ Account BSB … account …94;

(c) Causing or permitting the transfer or diminishing or reducing the assets held, or further encumbering any assets by F Pty Ltd without order of this Court;

(d) Causing or permitting or allowing the transfer of any funds from the said ANZ Account other than to meet expenses in the ordinary cause of the business of F Pty Ltd;

(e) Transferring or otherwise disposing of or diminishing his shareholdings in any of the entities comprising the T Group;

(f) Resigning from any of his directorship of any of the entities comprising the T Group;

(g) Transferring or otherwise diminishing or disposing of his registered interest in 1 J Street, Suburb K, Region D; and

(h) Taking any action resulting in the loan facilities comprising ANZ Loan #...38 and ANZ Loan #...46 (or any replacement loan facilities) exceeding a liability balance of $3,700,000 EXCEPT to the extent that any such additional liability be solely utilised in compliance with the respondent’s obligation in paragraphs 1 and 6.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The extent of agreement between the parties is such that the area of contention that remains is of narrow compass and confined to the payment, if any, of a settlement sum and the time for transfer of the Suburb C property.BACKGROUND The applicant was born in 1968 and is 56 years old. The respondent was born in 1972 and is 53 years old. The parties commenced their relationship in 1999 and after a period of 21 years of cohabitation, they separated in June 2020. There are two children of the relationship namely, Ms UU born (“Ms UU”) 2004 and X born 2009 (“X”). At the time of cohabitation in 1999 the applicant was employed as a full-time healthcare professional with the respondent a self-employed professional. In 2010, the applicant ceased employment as a healthcare professional and took over the payroll, bookkeeping and administrative services for the various business ventures and entities undertaken by the respondent and Mr L. Notwithstanding that the parties separated in 2020, the applicant continued working for the respondent and Mr L until January 2022. The applicant now holds an administrative position for a City M based employer. At the commencement of cohabitation, the applicant held an interest in some furniture and personal effects, a motor vehicle and an accumulated superannuation entitlement with Super Fund 2. The applicant is uncertain as to the extent of property held by the respondent but she contends that it included an interest in a business known as “HH Venue”, personal effects, a motor vehicle and minimal savings. The applicant asserts that both she and the respondent undertook full time work and employment other than some relatively short periods of maternity leave. The parties never held a joint bank account. It appears that there was an agreement in place such that the respondent paid for the expenses, loan obligations and maintenance of properties held in particular, B Street, whereas the applicant paid for other household expenses including health care, childcare, children’s education costs, groceries and general living expenses. Given the agreement between the parties, it appears uncontroversial that the holistic consideration of their separate contributions both financial and non-financial should be treated as equal. The focus of the proceedings is therefore to determine and settle upon a balance sheet which sets out the assets and liabilities of the parties and the factors, if any, pursuant to s 90SF(3) of the Family Law Act 1975 (Cth) (“the Act”) are given weight. In broad terms, whilst the applicant submits that there should be an adjustment of 20 per cent in her favour on account of s 90SF(3) factors, the respondent does not consider that there should be any adjustment in favour of either of the parties. Irrespective of that outcome, the respondent considers that even on the basis of the group of companies having a cumulative value of nil, the applicant should retain the Suburb C property unencumbered together with her personal effects and in particular, the entirety of her substantial superannuation entitlements.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, the property of the parties should be divided equally however, it must be emphasised that the respondent makes a considerable concession by not seeking to re-adjust the substantial difference in the superannuation entitlements of the parties.CONCLUSION Having regard to the adjusted asset pool, the total assets of the parties are in the sum of $2,118,533. The liabilities that must be brought to account are in the sum of $1,449,028 leaving a net asset balance of $669,505. At 50 per cent, the applicant is entitled to $334,752. The applicant retains the following assets: The liabilities are as follows: Taking into account the 50 per cent interest of the applicant, her entitlement is $334,752. The property retained by her has equity in the sum of approximately $613,332. It is immediately apparent that not only has the applicant retained the majority of the available property but the further position of the respondent is that he will discharge, over a period of 24 months, the payment of mortgage instalments as and when they fall due together with the balloon payment at the end of the relevant period totalling $393,308. Based upon the orders sought by the respondent, the applicant will retain property of at least $1,007,943 together with the retention of her superannuation entitlements, noting that the current mortgage liability is to be discharged by the respondent. It is difficult to know what sits behind the respondent’s proposal that would see the applicant retain the overwhelming majority of the available assets. It could be that he has an intention to ensure that his conduct during the course of the relationship should not adversely impact upon the applicant. A further alternative possibility is that the respondent holds significant belief that he and Mr L will turn around the business fortunes of the group of companies in particular, F Pty Ltd, providing him with an opportunity that is not available to the applicant. Even with the most generous consideration of s 90SF(3) factors in favour of the applicant, the application of appropriate considerations does not equal and certainly not exceed the respondent’s proposal. The superannuation interests of each of the parties are overwhelmingly in favour of the applicant.TIME TO PAY At the conclusion of the proceedings each of the parties were given leave to file a minute of order if agreement could be reached as to the time for the respondent to discharge the mortgage over the Suburb C property. The parties were not able to reach agreement save as to the applicant now seeking that the mortgage be discharged by 31 July 2025 with the respondent maintaining his position that the time to pay should be 24 months. The respondent also provided his consent to him being bound by injunctive orders during the period leading up to the settlement date. Whilst not the subject of comment by the applicant, the orders proposed by the respondent are included in subsections 13(e) to (h) inclusive. I propose to make orders as sought by the applicant subject to the further consideration of whether the mortgage secured over the Suburb C property should be discharged in 60 days as sought by the respondent or 24 months as sought by the respondent.

Ratio Decidendi

Legal Principle Established

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