Mansfield and Mansfield and Ors (No.3)
[2018] FCCA 970
•2 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANSFIELD & MANSFIELD & ORS (No.3) | [2018] FCCA 970 |
| Catchwords: FAMILY LAW – Property proceedings – wife seeks joinder of third parties – third parties to be joined appointor, corporate trustees and trustees of discretionary trusts established by husband’s father – third parties seek summary dismissal of wife’s claim against them – wife seeks orders setting aside instruments executed by corporate trustee – husband formerly director of trustee company – wife seeks setting aside of appointor of trust and husband’s directorship – nature of section 106B – principles to be applied to joinder – nature of summary jurisdiction application – analysis of husband’s degree of control over trusts in question – matrimonial property – matters to be considered. |
| Legislation: Family Law Act 1975, ss.4, 75(2)(o), 78, 79, 80, 106, 114, 118 Federal Circuit Court Rules, rr.4.05, 11.01, 11.04, 13.10 |
| Cases cited: Mansfield & Mansfield [2016] FCCA 2233 Mansfield & Mansfield [2017] FCCA 13 Rana v University of South Australia (2004) 136 FCR 344 Kennon v Spry (2008) FLC 93-388 In the Marriage of Davidson (No 2) (1990) FLC 92 -197 In the Marriage of Ashton (1986) FLC 91-777 In the Marriage of Gould (1993) 17 Fam LR 156 Choate v Choate [2009] FamCA 525 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Mansfield & Mansfield (No 2) [2017] FCCA 1117 Simic & Norton [2017] FamCA 1007 Diem & Vho and Ors [2016] FamCA 680 McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 400 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 Webster v Lampard (1993) 177 CLR 598 Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 Bigg v Suzi (1998) FLC 92-799 Przbylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256 Youghanns & Ors v Youghanns & Ors (1999) FLC 92-836 In the Marriage of Pflugradt (1982) 7 Fam LR 188 Anison v Anison [2015] FamCA 973 B Pty Ltd and Ors & K and Anor (2008) FLC 93-802 |
| Applicant: | MS MANSFIELD |
| First Respondent: | MR MANSFIELD |
| Second Respondent: | MR MANSFIELD SENIOR |
| Third Respondent: | MS MACRI |
| Fourth Respondent: | COMPANY 1 PTY LTD |
| Fifth Respondent: | TRUST A |
| Sixth Respondent: | MR MANSFIELD SENIOR FAMILY TRUST |
| Seventh Respondent: | TRUST C |
| Eighth Respondent: | COMPANY 2 PTY LTD |
| File Number: | ADC 4119 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 27 November 2017 & 30 January 2018 |
| Date of Last Submission: | 30 January 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 2 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lindsay and Mr Jordan |
| Solicitors for the Applicant: | Jacqui Ion Lawyers |
| Counsel for the First Respondent: | Mr Weil |
| Solicitors for the First Respondent: | Scanlan Carroll Pty Ltd |
| Counsel for the Second, Third, Fourth & Fifth Respondents: | Mr Abbott SC |
| Solicitors for the Second, Third, Fourth & Eighth Respondents: | DMAW Lawyers |
ORDERS
The wife’s application to join Mr Mansfield Senior, Ms Macri, Company 1 Pty Ltd and Company 2 Pty Ltd as parties to these proceedings is dismissed.
The wife’s joinder of the Trust A and the Trust C is discharged.
The wife’s claim against the second respondent Mr Mansfield Senior, the third respondent Ms Macri, the fourth respondent Company 1 Pty Ltd and the eighth respondent Company 2 Pty Ltd is dismissed.
The fifth named respondent the Trust A, the sixth named respondent Mr Mansfield Senior Family Trust and the seventh named respondent Trust C be removed as parties.
The second, third, fourth and eighth respondent are to provide written submissions in relation to costs and any necessary affidavit in support of such application is to be filed within twenty eight days of today’s date
The applicant wife is to file any written submissions in response to such application and any necessary supporting affidavit within a further twenty eight days of that.
Further consideration of the matter is adjourned to 19 July 2018 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Mansfield & Mansfield & Ors (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4119 of 2014
| MS MANSFIELD |
Applicant
And
| MR MANSFIELD |
First Respondent
| MR MANSFIELD SENIOR |
Second Respondent
| MS MACRI |
Third Respondent
| COMPANY 1 PTY LTD |
Fourth Respondent
| TRUST A |
Fifth Respondent
| MR MANSFIELD SENIOR FAMILY TRUST |
Sixth Respondent
| TRUST C |
Seventh Respondent
| COMPANY 2 PTY LTD |
Eighth Respondent
REASONS FOR JUDGMENT
Introduction
On 5 November 2014, Ms Mansfield “the wife” commenced proceedings, in this court, in respect of parenting and property issues. At the time, the sole respondent to these proceedings was Mr Mansfield “the husband”.
The parties married on 2008 and finally separated on 2014. They are the parents of [X] born 2006 and [Y] born 2007.
The wife came to live in Region B in 2004, to pursue work opportunities. She met the husband, in Region B. He is a long term resident of the district, as is his father, Mr Mansfield Senior “Mr Mansfield Senior”.
The parties have lived in Region B since they met. The husband operates a Business 1 and owns some farming land, which he leases, providing a modest income. During the proceedings, it has become apparent that it is convenient to refer to this land as Property C. During their relationship, the wife acquired qualifications as a (occupation omitted).
It is the husband’s position that he is a person of average wealth, whose weekly income is unexceptional. The wife does not agree. She asserts that the husband is in control of significant wealth, including other parcels of land at Property C, through a trust or trusts controlled by corporate trustees, which ultimately are subject to his direction, in some manner or other, either directly or indirectly.
The wife does concede that Mr Mansfield Senior was instrumental in originally acquiring this land but she asserts that he has since divested it, in some way to the husband and his sister. In contrast to the husband, she characterises herself as a person who is not personally wealthy and whose income earning potential is uncertain, due to a lack of (employment omitted) opportunities in the area.
There is no controversy that Mr Mansfield Senior is a very wealthy person, due to his successful business efforts in (industries omitted) during the past fifty years or so. Mr Mansfield Senior is now aged in his early seventies and currently enjoys indifferent health. In the past, he has worked extremely hard operating (businesses in North Queensland and more recently farming in the Region A and B district near Region B. He also owns a (business) at Region C.
Mr Mansfield Senior’s business affairs are complex and his extensive property interests are controlled through a variety of trusts and corporate entities. Mr Mansfield Senior has been advised by a variety of professional people, in respect of these matters, the most significant of whom, for the purpose of these proceedings, is his accountant, Mr F. Mr Mansfield Senior, although a shrewd and hardworking person, is not well particularly adept in respect of legal or accounting issues.
Besides his son, Mr Mansfield, Mr Mansfield Senior has one other offspring. She is Ms Macri “Ms Macri”. She lives in Queensland currently and has, in the past, assisted Mr Mansfield Senior with bookkeeping in respect of his financial affairs.
Mr Mansfield Senior enjoys cordial relations with both the husband and Ms Macri. As such, I have no reason to believe that he would not want to benefit his offspring (and indeed [X] and [Y] and his other grandchildren) after his death.
However, it has been his evidence that, until that time comes, in his mind, all his property remains subject to his ultimate control and is his to do with, as he wishes, without any interference from either his son or daughter or anyone else. It is his understanding that he is the appointor of various trusts set up, with the assistance of Mr F and, as an appointor, he has absolute control over the trust concerned.
The relevant entities concerned are as follows:
·Company 1 Pty Ltd;
·Trust A;
·Mr Mansfield Senior Family Trust;
·Trust C;
·Mansfield Pty Ltd.
There is no dispute that the husband, Ms Macri and indeed their children (and respective spouses) have been named as beneficiaries of these trusts. In addition, both the husband and Ms Macri have been directors of the companies concerned and have been allocated shares in them. They each, however, refute that they have any degree of control over any assets held by these entities or can direct Mr Mansfield Senior in respect of them.
The wife asserts that the husband and Ms Macri have proprietorial interests, in these various entities and, accordingly, in the husband’s perspective these interests are property for the purposes of part VIII of the Family Law Act 1975. Most significant, in this regard are trusts dealing with the extensive parcels of land adjoining Property C 1, which all concerned agree are to be described as Property C 2, Property C 3, Property C 4 and Property C 5.
Further, the wife asserts that the husband and Mr Mansfield Senior, with the acquiescence of Ms Macri, have executed documents in order to transfer proprietorial interests from the husband back to Mr Mansfield Senior, in order to defeat her proper claim for matrimonial property settlement and these transactions occurred shortly after she and the husband separated.
One of these deeds relates to the resignation of the husband as a director of Mansfield Pty Ltd around about the time the husband and wife finally separated. The wife also challenges the resignation of Mr Mansfield Senior, as appointor of the Trust C, and his replacement by Ms Macri in 2016.
More significantly, there have been a number of transactions in respect of the various Property C parcels. As a consequence, the wife has applied to the court that these transactions be set aside pursuant to the provisions of section 106B of the Act.
In general terms, the wife also seeks orders that [X] and [Y] live predominantly with her and she be permitted to move their home from Property B to Adelaide, where she asserts she will have better career prospects and be personally much happier.
The husband is vehemently opposed to the relocation and wishes the children to live, with each of their parents, in what is commonly called a shared care or equal time regime, which would be based in Region B. Accordingly, the parenting aspect of the case is characterised by what lawyers refer to as a relocation issue.
Each party has made many stringent criticisms of the other’s capacity and insight as a parent. The wife characterises the husband as a violent and controlling person, who has subjected her to coercive surveillance, in Region B, which has had detrimental psychological consequences for her. On the other hand, the husband characterises the wife as a selfish and volatile parent, who is dependent on alcohol.
Against this difficult background, two family assessment reports, prepared by Ms A, have been commissioned by the parties. These reports have been directed towards examining the nature of the children’s relationship with each of their parents; their views about possibly moving away from Region B; the nature of the parties parenting relationship with one another, particularly its capacity to support a shared care regime; and issues to do with the wife’s alcohol consumption and psychological health.
The first report (April 2015) recommended that the issue of relocation be deferred for approximately 12 months to see if this period would assist the parties to mend their own parenting relationship and assist the children to become more emotionally and educationally resilient. The parties accepted this recommendation and, against this background, the proceedings begun in November of 2014 were deferred for approximately 12 months.
In this period, the proceedings themselves have become much more complicated. It is also my impression that the level of conflict, between the parties, already extreme following their separation, has inexorably become more intense. These factors have coincided with each of the parties incurring an extraordinary level of legal fees, which are practically impossible to justify to any outside lay observer.
Ms A’s second family assessment report was released in November of 2016. Again, Ms A viewed both children as being vulnerable and emotionally torn, particularly [Y] who was struggling at school, both academically and behaviourally. It was also Ms A’s view that the children shared a close relationship with each of their parents.
Given the relocation aspect of the case, Ms A also explored, with each of the children, their views about possibly moving away from Property B to Adelaide. Neither child expressed a strong desire to move. [X] indicated that she would hate to move, whilst [Y] was more ambivalent, seeing factors for and against the move. In this context, interestingly, when [Y] was asked to express some wishes, one of these was to “be able to buy his mother a house”.
In her second report, Ms A appears to have been acutely aware that she is not the ultimate finder of fact in respect of the parenting aspects of the case – that is a role retained exclusively by the court, if the case proceeds to a final hearing. However, Ms A was able to identify the major areas of factual dispute, arising between the parties, and did discuss their possible implications for [X] and [Y].
The major factual controversies centre on the following:
·The level of the wife’s alcohol consumption. Is her previously problematic drinking in remission or, if she is released from regular scrutiny, is it inevitable that her level of alcohol use will return to its previous levels, with serious implications for the care and emotional safety of [X] and [Y];
·Is the husband a person who has subjected the wife to his coercive and controlling behaviour, particularly in terms of his having had her subjected to the professional surveillance of a private detective;
·If so, does this behaviour pose an ongoing risk for the wife’s psychological health, which if compromised, will prevent her from discharging her parental responsibilities for the children to the full extent of her capacity.
The factors related to the wife’s alcohol consumption if resolved in the husband’s favour, militates in favour of the children remaining in Region B. The factors, relating to coercive and controlling behaviour, if resolved in the wife’s favour, militates in favour of the children moving to Adelaide.
Given her role in the proceedings, within the matrix of her professional qualifications, Ms A explored these issues, from the perspective of [X] and [Y], at the present time, particularly in respect of the views expressed to her by [X] and [Y]; the nature of the children’s relationship with each of their parents; and her perception of how the parties’ parenting relationship was currently functioning.
In this context, Ms A reported her view that “what is currently occurring is working for the children.” Although Ms A noted that the wife reported being lonely in Region B, clinical criteria did not indicate that she was clinically anxious or depressed. Rather, she was coping with what was occurring.
In these circumstances, Ms A was not in favour of a relocation occurring. Nor was she in favour of the equal time regime proposed by Mr Mansfield, notwithstanding the fact that the children had expressed a desire to spend more time, with their father, than currently occurred under the current regime of weekend school term and some holiday time.
In this context, Ms A urged the husband to change his focus from one of actively seeking out as much detrimental evidence as possible about the wife to one which she would perceive to be more emotionally supportive of her parenting role with the children.
Essentially, Ms A recommends that the parties attempt to de-escalate the tensions between them, particularly those relating to the application of legal mechanisms. I appreciate that this may be easier said than done, in the context of extended and vitriolic family law proceedings, particularly since the husband and wife have each now incurred liability for extremely large legal bills.
Interestingly, Ms A chose to end her second report with a practical observation:
“A final notice that both children, when asked what they could possibly wish for in the world, wanted their mother to be able to have a house. Even according to Mr Mansfield, the car Ms Mansfield is driving is so old it is unsafe. Progressing the property settlement will clearly be of benefit in these circumstances.”[1]
Regrettably, it would seem this recommendation has fallen on deaf ears. Rather, the focus has been on broadening and complicating the property aspects of the case.
[1] See family assessment report dated 24 November 2016 at page 16
Background to the current proceedings
As previously indicated, the wife commenced these proceedings in 2014. Initially, the parties were able to agree on interim arrangements for the care of [X] and [Y]. At an early stage, the wife deposes as follows:
“Mr Mansfield Senior owns extensive farming properties together with the Business 2,, plus two apartments … in Darwin and according to [the husband] has properties of a combined worth between $18million and $20 million dollars. ... I am aware that [Mr Mansfield Senior] has set up a family trust fund for him titled the Trust D to provide for [the husband’s] future financial security.”[2]
[2] See wife’s affidavit filed 5 November 2014 at paragraph 36
In response to this assertion, the husband deposed as follows:
“[the wife] has referred to a trust called the Trust D that is an asset that is owned by my father. My father is the appointor of that trust and the trustee is a trustee company. It is a discretionary trust and I am listed in the class of beneficiaries as is my sister. I am not aware of any distribution from this trust that I have received and I have certainly not received any distribution that I am aware of during our marriage. I do not have any interest in the assets of that trust and as such, they do not form part of the matrimonial asset pool that falls for division.”[3]
[3] See affidavit of the husband filed 24 December 2014 at paragraph 15
On 3 June, prior to a conciliation conference, the husband agreed to provide to the wife a copy of the Trust D and financial reports in respect of this trust for the last five years. In his statement of financial circumstances,[4] the husband estimated his income to be $952.00 per week. In addition, he asserted that the pool of assets, subject to these proceedings, consisted of the following major items:
·Trust C land at Property C, valued at $415,000.00 and acquired in 1985; [5]
·The former family home located at Property A, valued at $460,000.00 and acquired in 1999;
·An investment property at Property B, jointly owned and valued at $300,000.00 and acquired in 2012, subject to mortgage;
·Business 1 valued at $52,500.00;
·An interest in the Business 2, a (business omitted) estimated to be worth $100,000.00;
·A water licence valued at $36,600.00;
·Various motor vehicles.
[4] Filed 24 December 2014
[5] Property C 1
In these circumstances, the husband estimated the parties’ pool of assets to be worth approximately $1.1 million. The larger proportion of which was acquired, by him, prior to the commencement of the parties’ relationship. In these circumstances, he proposed a division of the parties’ assets 70/30 percent, in his favour.[6]
[6] See Response filed 24 December 2014
On the other hand, it is the wife’s position that the husband has a beneficial interest in assets worth significantly more than $1 million and the husband is intent on concealing these assets from her, by whatever mechanisms are available to him. By way of final property orders, she seeks the transfer of the former family home and the investment property at Property B be transferred to her, together with 65% of all other of the husband’s investments.
Following the release of the first family assessment report, in April 2015, the parties agreed to defer the proceedings for a period of approximately 12 months, as recommended by Ms A. In the meantime, attempts to resolve the property aspect of the case were fruitless.
In August of 2015, the husband deposed that he had been unable to comply with the court’s order regarding the disclosure of documents relating to the Trust D because Mr Mansfield Senior had refused to cooperate with his (the husband’s) solicitor because of his (Mr Mansfield Senior’s) view that the husband had no interest in this trust or any other of which he was the appointor.
The case returned to court, in May of 2016, after the agreed 12 months moratorium. On this occasion, the case was listed for final hearing, for four days, in mid-February 2017, which, at the time, were the earliest dates available to the court. It was also arranged for the case to return to court, in November 2016, when it was anticipated the second of Ms A’s reports would be to hand.
In conjunction with the final hearing allocation, each party was directed to file trial affidavits, in January of 2017. At this stage, the husband and the wife were the only parties to the proceedings. The relocation issue was difficult and controversial, but not of such complexity that this court should not determine it. In any event, at this stage, neither party advocated the transfer of the proceedings to the Family Court.
In late July of 2016 the husband filed an application in a case in which he sought injunctive relief relating to allegations raised by him in respect of the wife’s alcohol use. These allegations were based, in part, on the results of the reports of a private detective, who had observed the wife, without her knowledge, whilst she went about her business and was at home in Property B. I declined to grant the application in question.[7]
[7] See Mansfield & Mansfield [2016] FCCA 2233
Needless to say, these proceedings exacerbated tensions between the parties and formed part of the background to Ms A’s second report. The husband’s position being that his concerns about the safety of the children justified the involvement of the private detective; the wife asserting that she felt emotionally violated by the surveillance of her.
On 22 April 2016, the wife’s solicitors issued subpoenae to produce documents to Mr Mansfield Senior and Ms Macri, in their capacity as directors of Mansfield Pty Ltd. In due course, both Mr Mansfield Senior and Ms Macri objected to producing the documents sought on the basis that they were irrelevant to the family law proceedings between the husband and wife and it was oppressive, on each of them individually, to have to provide quasi discovery, in proceedings in which neither of them was a participant.
Ultimately, I overruled these objections on the basis that the wife did have a legitimate forensic purpose in seeking access to the documents in question. At that stage, I was at pains to point out to the parties concerned that I was not ruling on the overall admissibility of any of the documents sought, in these proceedings, particularly as to their relevance.[8]
[8] See Mansfield & Mansfield [2017] FCCA 13
Following this judgment, both the applicant wife and the respondent husband filed affidavit material in anticipation of the forthcoming trial scheduled for mid-February 2017. In the wife’s case, she filed the following affidavits:
i)Affidavit, together with two volumes of annexures, filed 17 January 2017;
ii)A further affidavit filed 3 February 2017;
iii)An updated statement of her financial circumstances filed on 3 February 2017.
In the husband’s case, he filed the following documents:
i)An affidavit of himself filed 3 February 2017;
ii)An updated statement of his financial circumstances filed 10 February 2017.
At this stage, the wife deposed that she was a (occupation omitted) employed by the (employer omitted). It was her position that she owned limited property, the most significant aspect of which was her half share in the jointly owned investment property at Property B. In the husband’s case, he disclosed up to date valuations of the various properties concerned, which he totalled to value $1,269,052.00, which was subject to liabilities of $127,441.00.
The wife’s affidavit of 17 January 2017 dealt only with issues to do with the parenting of [X] and [Y] and allegations of misconduct against the husband. The husband’s affidavit of 3 February was almost entirely responsive to these matters, other than he reiterated the contents of his initial affidavit, regarding his lack of control over any trusts relating to his father.
The wife’s second affidavit dealt only with property issues, including matters, which had apparently arisen from her advisers’ perusal of the documents produced as a consequence of the subpoenae directed to Mr Mansfield Senior and Ms Macri. The husband has not, as yet, formally responded to this affidavit and, for reasons which will become apparent shortly, has not provided any oral evidence about the matters raised in it.
The wife’s evidence can be summarised as follows:
·The husband had purchased farming land at Property C in 1986[9] for the sum of $105,548.00, which was subject to a mortgage of approximately $52,500.00, which has since been discharged. The land is currently leased to (omitted) Pty Ltd until 2024.
[9] This land is referred to as Property C 1
·The husband had purchased the former family home at Property A, which consists of a dwelling and 24 hectares of land, in 2000, for the sum of $240,000.00, which was subject to a mortgage subsequently discharged at the time of the discharge of the mortgage on Property C 1.
·At dates unknown to her, but around the mid-1990s, Mr Mansfield Senior purchased various parcels of land at Property C, which are also leased to (omitted) Pty Ltd.[10]
[10] These parcels of land are known as Property C 2, Property C 3, Property C 4 and Property C 5 and adjoin Property C 1.
·Mr Mansfield Senior had separated from his wife leading to property proceedings, in the Family Court at Adelaide, which were concluded on 20 March 2002. The husband and Ms Macri had intervened in these proceedings.
·The order of the court, made on 20 March 2002, to conclude these proceedings, directed the husband, Ms Macri, Mr Mansfield Senior and his former wife Ms J, whether as owner partner director shareholder appointor or otherwise to make payments of significant sums of money to Ms J.
·The Trust D was settled on 1996. Its trustee was Mansfield Pty Ltd incorporated on 1995. The husband and Ms Macri were beneficiaries of the trust.
·There are twelve shares issued in Mansfield Pty Ltd of which Mr Mansfield Senior owns ten and the husband and Ms Macri one share each.
·The husband was a director of Mansfield Pty Ltd from 1996 and retired on 2010. He was reappointed a director of 2012 but resigned again on 2014.[11]
·Company 1 Pty Ltd was incorporated on 1996. It is the trustee of the Mr Mansfield Senior Family Trust. Mr Mansfield Senior and Ms Macri are the directors of this company. The husband is a beneficiary of the Mr Mansfield Senior Family Trust.
·On 5 December 2002, following the family law proceedings between Mr Mansfield Senior and Ms J, Property C 2 was transferred to Mansfield Pty Ltd.
·On 24 November 2014 Property C 2 was again transferred from Mansfield Pty Ltd to Mr Mansfield Senior for no consideration.
·Property C 3 was transferred from Mansfield Pty Ltd to Company 1 Pty Ltd on 24 November 2014 for no consideration.
·Property C 4 was transferred to Mr Mansfield Senior on 24 November 2014 for no consideration.
·Property C 5 was transferred to Company 1 Pty Ltd on 24 November 2014 for no consideration.[12]
[11] The wife seek to impugn this transaction, given its proximity to the date of final separation.
[12] The wife seeks to impugn the transaction in respect of Property C 2
On 30 January 2017, the wife’s solicitors caused subpoenae to give evidence to be issued to Ms Macri, Mr Mansfield Senior and Mr F, in respect of the forthcoming trial. They were each directed to attend court on 14 February 2017, which as previously indicated, was the first day allocated for the hearing of the husband and wife’s competing applications for property settlement and parenting issues. As matters transpired, their oral examination by counsel for the wife consumed all the time allocated by the court.
At the conclusion of this evidence, counsel for the wife indicated his client’s application to amend her application in the light of this evidence. In these circumstances and given that there was no further time then available to proceed further with the matter, the proceedings were adjourned until 28 April 2017 and the wife was directed to file her application no later than 31 March 2017.
The foreshadowed amended application was in fact filed on 28 April 2017. It sought the following generic order for the settlement of property, in the following terms:
“Such order for settlement or property or alteration of interests in property as the court deems just and equitable.”
In addition, pursuant to the provisions of section 106B of the Family Law Act 1975, the wife sought that the various transactions involving Mansfield Pty Ltd and Company 1 Pty Ltd concerning the transfer of the several parcels of Property C land be set aside, along with the husband’s resignation as a director of Mansfield Pty Ltd.
More significantly, the wife added Mr Mansfield Senior, Ms Macri and Company 1 Pty Ltd, as parties to the proceeding. She also purported to add the Trust A, the Mr Mansfield Senior Family Trust and the Trust C, as further parties. Mansfield Pty Ltd was not added. This appears to have been an oversight on the part of the wife’s solicitors.
Solicitors acting for Mr Mansfield Senior, Ms Macri and Company 1 Pty Ltd responded to this joinder on 18 May 2017. They sought the dismissal of the amended application, so far as it affected each of their clients. The response was supported by an affidavit of their solicitor, Mr M.[13]
[13] See affidavit of Mr M filed 18 May 2017
In this affidavit, Mr M pointed out that, as a trust is not a legal entity, it cannot be a party to proceedings such as these. Mr M also noted that Mansfield Pty Ltd had not been named as a party. Mr M also complained, on behalf of his clients, of the vagueness of the claims made against them and the lack of particulars regarding the relief sought, by the wife, against each of them. On this basis, Mr M sought an order that points of claim be filed by the wife.[14]
[14] This is a procedure recognised by Rule 4.05 of the Federal Circuit Court Rules
On 29 June 2017, an order was made adding Mansfield Pty Ltd as a party to the proceedings, without demur from senior counsel instructed by Mr M, Mr A. In addition, the wife was ordered to file an affidavit and statement of claim within 21 days. On 6 July 2017, the wife’s solicitor filed a second further amended initiating application, which named Mansfield Pty Ltd as the eighth respondent.
The order for the filing of points of claim was not formally complied with. However, on 25 September 2015, the wife’s counsel provided them to the court, after having apparently provided them to the solicitors for the husband, Mr Mansfield Senior, Ms Macri and the other corporate entities.
In this document, the wife abandoned her application against the Trust A, the Mr Mansfield Senior Family Trust and the Trust C. Accordingly, she currently proceeds against Mr Mansfield Senior, in his capacity as the trustee of the Trust A; against Ms Macri in her capacity as the trustee of the Mansfield Family Trust; and against Mansfield Pty Ltd, in its capacity as the trustee of the Trust D; as well as against the husband.
The orders sought by the wife are now as follows:
“That the Application in a Case filed by the Second to Eighth Respondents on 15 November 2017 be dismissed.
That the proceedings in so far as they relate to property matters be transferred to the Family Court of Australia.
That the proceedings in so far as they relate to parenting matters, including the Applicant wife's intention to relocate to Adelaide with the children, be listed for an expedited hearing before Judge Brown.
That the Affidavit of Mr M filed on 15 November 2017 on behalf of the Second to Eighth Respondents be uplifted from the Court file and refiled in accordance with the Practice Direction of Chief Judge Pascoe dated 10 May 2017 relating to interim proceedings filed in the Adelaide Registry of the Federal Circuit Court.
In the alternative to paragraph 4 herein, that a direction be given by Judge Brown as to the obligation of the Applicant wife to address in Affidavit material filed by her or on her behalf evidence contained in the 82 exhibits annexed to the Affidavit of Mr M filed on 15 November 2017 on behalf of the Second to Eighth Respondents
That the Applicant wife be given leave to amend her Second Further Amended Initiating Application filed 6 July 2017 in terms set forth in the orders sought by the Applicant wife in paragraph B of the Points of Claim filed by the Applicant wife on 28 July 2017.
That the Applicant wife be given leave to discontinue the Second Further Amended Initiating Application filed 6 July 2017 against the Fifth, Sixth and Seventh Respondents. That, subject to paragraph 7 herein, the Second to Eighth Respondents file and serve such Affidavits as required to identify which sub-rule of Rule 13.10 of the Federal Circuit Court Rules 2001 upon which they rely in seeking the order for summary dismissal in paragraph 2 of the Application in a Case filed 15 November 2017 by the Second to Eighth Respondents.
That, subject to paragraph 7 herein, the Second to Eighth Respondents file and serve such Affidavits as required to indicate the facts upon which they rely in support of their Application in a Case filed 15 November 2017.
That, subject to paragraph 7 herein, the Second to Eighth Respondent file and serve such Affidavits as required to indicate which of the 82 exhibits annexed to the affidavit of Mr M filed 15 November 2017 on behalf of the Second to Eighth respondents they rely in support of their Application in a Case filed 15 November 2017.
That the Applicant wife be discharged from her obligation to pay to the Respondent husband the sum of $180.00 per week in respect of the Property B property as set out in paragraph 2 of the order dated 26 May 2017 such that the amount payable to the Respondent husband is reduced to zero.”
In generic terms, these orders can be summarised as follows:
·The setting aside of land transfers in respect of the Property C land, from Mansfield Pty Ltd to Company 1 Pty Ltd [Family Law Act 1975 section 106B] .
·In lieu of these land transfers, an order in respect of those transfer that the court considers necessary to do justice [section 80(1)(k)] or an order for the alteration of proprietary interests [section 79];
·The setting aside of the transfer of Property C 4, to Mr Mansfield Senior on 21 November 2014 and a further parcel of land to Mr Mansfield Senior on that date;
·The setting aside of the resignation of the husband as a director of Mansfield Pty Ltd on 2014;
·The setting aside of the resignation of Mr Mansfield Senior, as appointor of the Trust C, on 2016;
·The setting aside of distributions made by Mansfield Pty Ltd, as trustee of the Trust D to Mr Mansfield Senior, as the trustee of the Trust C between 2012 and 2015, amounting to approximately $317,000.00.
These are transactions, which came to the attention of the wife, as a consequence firstly, of the dismissal of the subpoena objection resulting in her being able to access documents relating to the Trust D and secondly, as a consequence of the evidence provided by Mr Mansfield Senior, Ms Macri and Mr F, in mid-February of 2017.
Counsel for the wife contends that his client has been put to considerable expense as a consequence of this tortuous procedure and has been subsequently vindicated by what has been revealed, which he would characterise as a series of questionable transactions arising suspiciously around about the time of the separation of the husband and wife.
On the other hand, senior counsel for Mr Mansfield Senior, Ms Macri and the related corporate entities asserts firstly that this information is not and have never been relevant to the proceedings between the husband and wife and secondly, it has now, in any event, been provided chapter and verse, albeit under sufferance.
In addition and more importantly, he and counsel for the husband assert that there is no cogent evidence to indicate that Mr Mansfield Senior or any person or entity associated with him has distributed any property to the husband at times relevant to the marriage or that there is anything untoward in respect of the transfer of the Property C parcels of land or the resignation of the husband’s directorship of Mansfield Pty Ltd.
To the contrary, it is the submission of Mr A that the evidence particularly of Mr Mansfield Senior and Mr F provides an exhaustive and incontrovertible explanation as to why the Property C land was transferred, when and how it was, and the circumstances surrounding the husband’s directorial resignation.
As a consequence, Mr Mansfield Senior, Ms Macri and the various companies related to them assert that there is no legal or evidentiary justification for them to remain as parties to the proceedings and, accordingly, they should each be discharged from them. It is this issue primarily, which is the subject of these reasons for judgment.
The current application
On 15 November 2017, Mr M filed an application in a case, on behalf of his clients, in which he sought the following orders:
“That the Second, Third, Fourth and Eighth Respondents be excused from complying with order 6.2 made by this Honourable Court on 29 June 2017 until such time as this Court has determined this application.
That the applicant’s claims as against the Second to Eighth Respondents be summarily dismissed.
Further or in the alternative, that the Second to Eighth Respondents be removed as parties to the action.
That the Applicant pay the costs of the Second to Eighth Respondents.”
The application was supported by an affidavit of Mr M. The affidavit itself is comparatively brief, consisting of some 18 paragraphs. However, attached to the affidavit are four volumes of documents, which deal with the various transactions sought to be impugned by the wife. The court has also had access to a transcript of the proceedings of 14, 15 & 16 February 2017.
The wife responded to this application on 23 November 2017. She sought orders, which can be summarised as follows:
·The summary dismissal application be dismissed;
·The property proceedings be transferred to the Family Court;
·The relocation aspect of the case proceed to an expedited hearing in the Federal Circuit Court;
·The affidavit of Mr M, filed on 15 November 2017 be uplifted;
·The additional parties file a substitute affidavit more indicative of the evidence relied upon, rather than providing documents holus bolus.
The basis of the wife’s application, in respect of the uplifting and replacement of Mr M’s affidavit, rested on the court’s recent practice direction in respect of the conduct of interim hearings. The direction requires that affidavits, in interim proceedings, not exceed ten pages in length and contain no more than five annexures.
Although Mr M’s affidavit complied with the first stricture, it contained 82 exhibits, the majority of them being lengthy legal and accounting documents, amounting to over 700 pages. As previously indicated, Mr Lindsay, counsel for the wife, objected to its continued filing on the basis that these documents had been provided without any commentary or context in Mr M’s affidavit and had not been provided earlier.
It should also be noted that the practice direction provides the presiding judge with a discretion to admit affidavits, which would otherwise offend the practice direction. In addition, the practice direction indicates, on its face, that its intent is to augment the overall objectives of the court.
These are set out in section 3(2) of the Federal Circuit Court of Australia Act 1999, are designed to enable the court to operate as informally as possible and use streamlined procedures. The overall aim being to allow ready access to justice, for litigants, in less complex family and general law proceedings.
In addition, pursuant to section 42 of the Act, the court is directed by the use of the word must to:
“…proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.”
In my assessment, which I have communicated to the parties concerned, the current proceedings are most certainly not less complex. Those advising the wife did not seek the transfer of the proceedings at an early stage. Rather, they have utilised the court’s time to seek a wide range of commercial documents, from entities outside of the direct parties to the marriage in question, regardless of the court’s legislative imprimatur to provide relief in less complex matters.
Having joined parties, the wife now complains about the extent of the documentary evidence provided, to her, by them, on her petition. In effect, the wife has chosen a jurisdiction, which has accommodated her need for urgent attention, in respect of the complex litigation, which she has wished to mount, when it has suited her and when this complex litigation has resulted in her being provided with an extensive amount of material, she has attempted to invoke the court’s practices, designed to manage its high volume of less complex matters, to deflect the impact of that material. In my view, her position can be summarised by the aphorism of both wanting and eating her cake.
In my view, the practice direction in question was directed towards the management of interim parenting cases coming before the court. Such applications comprise a significant component of the court’s work and, as a consequence, have to be carefully managed, so that the court can get through its business expeditiously and equitably, for the overall benefit of all court users.
In my view, the practice direction was not directed towards the complex type of litigation currently being mounted by the wife, which is more suitably accommodated in the superior Family Court. However, the court is seized of the matter and must deal with it, as best it can, notwithstanding the logistical difficulties it represents. In so doing, it cannot shy away from its legislative imprimatur to be as user friendly as possible, even if the ethos is not always reciprocated by its users.
In these circumstances, there is some tension arising from the fact that the wife, on the one hand, has mounted this complex litigation, in this court rather than the Family Court and, on the other, her reliance on a practice direction, which is directed towards assisting the court dealing with the high volume of its work.
I am concerned that those advising the wife would want to rely on the court’s streamlined procedures, when it suits them and ignore them, when it does not.
In my view, the issue should be determined largely by reference to the overarching ethos of the court – what is the process more amenable to achieving the objectives of cheaper and expeditious justice, in a lower level federal court, in keeping with the directive to the court contained in section 42. In Rana v University of South Australia Lander J said as follows:
“The Federal Magistrates Court has abandoned pleadings in favour of affidavits. In doing so, it has recognised that the Court has been created to offer relatively inexpensive and expeditious justice. It is a Court which should proceed without undue formality and should ensure proceedings are not protracted: [section 42]. It has abandoned the formal procedures of superior Courts. That course is consistent with the Act and the FMCA Rules.”[15]
[15] Rana v University of South Australia (2004) 136 FCR 344 at [34]
In my view, to reject the document in question, at this stage, would not have assisted in the expedition of these proceedings. In these circumstances, I elected to exercise my discretion to accept it. Thereafter, on 27 November 2017, Mr A made his submissions to the court in support of the summary dismissal application, which was supported by lengthy written submissions.
In order to answer any prejudice suffered by Mr Lindsay, given the lengthy nature of these submissions and the extent of the other documentation, the proceedings were then adjourned, for completion, to 30 January 2018. On this date, Mr Jordan submitted Mr Lindsay’s written submissions, as Mr Lindsay had apparently elected to withdraw from the proceedings, but he (Mr Jordan) elected not to make any additional oral submissions, in support of them. Mr A responded.
The evidence so far
a)Mr Mansfield Senior
Mr Mansfield Senior is 73 years of age. He presented as a frail person, who was in poor health. He confirmed that he is suffering from Parkinson’s disease and had a bad heart because of vascular issues. He gave his occupation as farmer. I found him to be a shrewd and hard-working person, who was not greatly concerned with legal niceties, which he left to others, particularly his accountant.
Mr Mansfield Senior conceded that he had a poor memory. However, in my estimation, he answered the considerable number of questions put to him, frankly and honestly, as best he could, notwithstanding he was not particularly well at the time.
Mr Mansfield Senior may well be suffering some of the privations of old age, such as physical fragility, illness and poor memory. However, I had no doubt that he is still very much aware of how many beans make five. As such, I consider that he was well aware of his business situation, in a general way, particularly in respect of what assets his efforts had built up over many years, but not necessarily the intricacies of their technical legal ownership, which he regarded as the domain of Mr F.
A number of salient features clearly emerged from Mr Mansfield Senior’s evidence, which can be summarised as follows:
·The land at Property C in the parcels concerned was “all my (Mr Mansfield Senior’s) land. I’ve fought all my life to keep the land together and I’m going to go on fighting for it;”
·He was the appointor of each of the trusts concerned and as such he had “total control” over the trusts;
·He had not transferred any properties to the husband, as they remained in the trusts;
·He had made transfers over various parcels of land at Property C between the trusts designed to benefit the husband and Ms Macri, after his (businesses omitted) in Queensland had been sold, to even up the assets between the two trusts;
·He had wanted to divide his trusts so it would be equal between the husband and Ms Macri and so both would be happy and there’s be no blue later on;
·The husband and Ms Macri would get their half share when he died or when he saw fit. The transfers had been done to avoid disputation after his death;
·Neither the husband nor Ms Macri had ever received a distribution from any of the trusts and he had not made any loans or gifts to either of them;
·Mr Mansfield Senior had made a will, which provides that Ms Macri and the husband will receive his asset, after his death, but he had no intention that they would receive anything prior, unless he became really, really sick;
·In 2016, whilst he was in hospital and it was believed he was terminally ill, he had resigned as appointor of the trusts in favour of Ms Macri but this had not affected his view that the property of the trust remained his alone.
b) Mr F
Mr F is an accountant, who practices in Region B. He has been Mr Mansfield Senior’s accountant since 2008 and has prepared all the financial documents in respect of trusts and companies relating to Mr Mansfield Senior since this date, including tax returns. He indicated that there were a lot of these entities, relating to Mr Mansfield Senior, for accounting purposes, which he had attempted to simplify over the years. Mr F confirmed that Mr Mansfield Senior had sold his (businesses omitted) some years before.
Mansfield Pty Ltd is the corporate trustee for the Trust D, whilst Company 1 Pty Ltd is the corporate trustee for the Mansfield Family Trust. Mr F deposed that Mr Mansfield Senior, although its appointor, had not originally been a beneficiary of the Trust D. He was also the appointor of the Trust A and its primary beneficiary.
Between 2010 and 2015, the Trust D had nonetheless made significant cash distributions in favour of Mr Mansfield Senior, reflecting profits generated by assets held by the trust. Given he was not a beneficiary of the trust, these distributions had been made in error.
The omission of Mr Mansfield Senior, as a beneficiary of this trust, was an error, which was not picked up until 2015. Over the five years from 2010, profits of approximately $1.1m appeared in the balance sheet of Mansfield Pty Ltd, as the corporate trustee of the Trust D. These were recorded as credit loans in favour of Mr Mansfield Senior, as they had not actually been drawn.
This distribution accordingly had been made in breach of the trust. Mr F’s evidence was this error resulted in him having to amend the financial records for the Trust D, which he did at the sole direction of Mr Mansfield Senior.
Mr F’s evidence was that he dealt predominantly with Mr Mansfield Senior in respect of the affairs of the various Mansfield entities. In Mr F’s words “Mr Mansfield Senior is the guy that controls it, Ms Macri is the person who makes things happen. She’s the bookkeeper. And Mr Mansfield – I basically see Mr Mansfield to do his tax.”
Mr F also indicated that none of the trusts concerned had made any distributions, loans or gifts in favour of the husband. Rather any income or profits generated by assets controlled by the trusts, including the farming land at Property C was basically ploughed back into his various businesses. Mr F described Mr Mansfield Senior as a workaholic.
The effect of Mr F’s evidence was that Mr Mansfield Senior had controlled all the trusts concerned at relevant times and had directed the payment of profits, sometimes erroneously, but none of these profits had physically been received by either the husband or Ms Macri.
Between 2011 and 2013, Mr Mansfield Senior had investigated the possibility of selling some of the Property C land. He had done this without any consultation with the husband. In these circumstances, it was Mr F’s understanding that Mr Mansfield Senior controlled the Trust D.
In 2009, Mr Mansfield Senior had received estate planning advice from solicitors in Adelaide, Griffin Hilditch about ensuring that, after his death, each of his children received an equal share of his wealth, which was predominantly held by the trusts of which he was appointor.
This had subsequently resulted in the transfers of the various parcels of Property C land, in 2014, specifically the transfer of Property C 3 and Property C 5 from Mansfield as trustee for the Trust D to Company 1 Pty Ltd as trustee for the Mr Mansfield Senior Family Trust. All these decisions had been made by Mr Mansfield Senior.
Mr F deposed that he had indicated to the lawyer at Griffin Hilditch in 2009 that, as the land had been purchased in 1996, if transfers took place after 2011, they would escape capital gains tax. The import of Mr F’s evidence is that Mr Mansfield Senior was contemplating moving around his assets and streamlining things from 2009 onwards.
c) Ms Macri
Ms Macri indicated that she had previously been her father’s bookkeeper. She further deposed that on 2016, Mr Mansfield Senior had suffered a heart attack and been hospitalised at the (omitted) Centre. There had been fears he would not survive.
In these circumstances, Mr Mansfield Senior had asked her to make arrangements for her to replace him as appointor of the Trust C, which she remained. However, it was her evidence that this appointment was in name only and Mr Mansfield Senior remained in control of his business affairs, of which she herself had little knowledge. Ms Macri indicated that she had not received any gifts, loans or distributions of assets from any of the trusts concerned.
At the present time, Ms Macri indicated that she would not dare exercise any power of appoint under the trust and she had no intention to do anything unless Dad said to. She was aware, in general terms, that there had been some questions regarding the legality of some land transfers arising from the date on which the husband had resigned as a director of Mansfield Pty Ltd. Ms Macri also understood that there were stamp duty and tax implications arising from the transfers and it was important things be done in terms of the fifteen year rule.
Ms Macri also gave evidence that following her father’s sale of his (businesses omitted), he was desirous of ensuring that each of his children received an equal proportion of his farming land, with both of them to control the Business 2. This had led to a family meeting, which took place in 2009. This meeting, in turn, led to Ms Macri arranging for Mr Mansfield Senior to consult a solicitor at Griffin Hilditch.
Ms Macri described her father in the following terms:
“Stubborn and almost pig-headed… he’s a very hard worker, has worked hard all his life.
In the context of these attributes, she said as follows in respect of his attitude towards what he had acquired, during his life:
“It’s his and all his. He has worked all his life for it. I mean, he’s very protective of it.”
These sentiments accorded with my own assessment of Mr Mansfield Senior. The evidence available to me indicates that neither the husband nor the wife were involved in Mr Mansfield Senior’s business activities. Certainly, it appears indisputable that neither the husband nor wife made any contributions towards the acquisition of Property C 2 – 5; the Business 2; or received any direct payment of profits related to these assets, which to all intents and purposes remained Mr Mansfield Senior’s property and subject to his control.
Mr Mansfield Senior, although an astute businessman, relies on others to advise him about corporate structure. Over the years, he has allowed his business affairs to become unwieldy. This, in turn, has led to mistakes arising in how his affairs have been managed. Mr F may have contributed to some of these mistakes inadvertently and has been subsequently asked to sort them out, which he has done, professionally and to the best of his abilities. He has had to rectify accounts and ensure that transactions do not attract unnecessary revenue levies.
Mr Mansfield Senior’s desire is to leave his assets, after his death, to each of his children equally. In order to achieve this objective, he has consulted solicitors, who have advised him as to the best mechanisms to achieve this object within the overall somewhat convoluted arrangement of trusts and companies, which he has assumed that he alone controls.
In 2002, Ms J was concerned at the possibility of her former husband remarrying and subsequently making dispositions of property in favour of others apart from her children, in the event he (Mr Mansfield Senior) re-married. To avoid such an outcome was one of the intentions of the 2002 Family Court order, as well as securing a transfer of property to Ms J.
Amongst other complicated provisions, it prohibited Mr Mansfield Senior from resigning as appointor of either the Trust D or the Mr Mansfield Senior Family Trust, other than in favour of a professional person in the form of either a specified Property B solicitor or accountant. The intent of this provision being to ensure that adequate provision was made for both the husband and Ms Macri and there was some form of what was described as professional watch dog over Mr Mansfield Senior.
Significantly, the order also provided that Mr Mansfield Senior might, by his will, convey his (omitted) licences to Ms Macri and his farming business to the husband. It is the evidence of Mr Mansfield Senior, Mr F and Ms Macri that with the sale of these licences, it became Mr Mansfield Senior’s desire to even up the Property C land between his two children, upon his death.
Ms Macri deposed that all concerned had largely forgotten about many aspects of this order, the implications of which had never subsequently been required to be engaged, particularly in terms of the engagement of professional people to oversee Mr Mansfield Senior to ensure that his children were not subsequently disinherited in any way whatsoever.
d) Mr M and the documents provided by him
I concede Mr M’s affidavit is difficult and cumbersome. It reflects the manner in which the parties have elected to approach this litigation, which is that no quarter, assistance or concession will be given to the other. These proceedings have been marked by a singular lack of cooperation between the parties and with no consideration as to how they can be effectively managed to reduce costs.
Mr Mansfield Senior and Ms Macri’s position is that they have been compelled to engage in litigation against their will and been put to both expense and inconvenience as a result – in Mr Mansfield Senior’s case, when he is far from well. In such circumstances, it is hardly surprising that they have not been inclined to be of assistance towards the wife and those advising her.
It is clear that the wife knows little of the financial affairs of Mr Mansfield Senior other than that he is wealthy. She does not contend that she personally has contributed towards Mr Mansfield Senior’s wealth or that her husband has. In addition, she has not asserted that Mr Mansfield Senior has gifted her or the husband during the period of the parties’ marriage.
In these circumstances, she has utilised these proceedings as a fishing exercise to ascertain what the extent of that wealth is. Mr Mansfield Senior’s attitude has been that his financial affairs are none of the wife’s business and he has been dragged unwillingly into these proceedings, which are not his affair.
It is now clear, if it was not at the outset of these proceedings that, unless his father changes his intentions, the husband is likely to be well provided for financially, on his father’s death, which I hope will be many years in the future.
The husband has not provided extensive evidence in these proceedings, as yet. He has not been cross examined. It is his position that he has disclosed all his assets and is not responsible for his father’s financial affairs. The wife was not in position to assert, at the outset of the proceedings, that the husband exerted any form of control over Mr Mansfield Senior’s affairs or was legally able to do so.
Against this background, in piecemeal fashion, the evidence regarding Mr Mansfield Senior’s financial affairs has come out, which the court is now required to forensically examine, it would seem, document by document. This is unsatisfactory. The court is not equipped to engage in such an exercise of forensic accounting. In my view, much of the wife’s case is based on a mixture of innuendo and wishful thinking, rather than on any particular provision of the Family Law Act.
In this case, the wife is not able to point to any additional transactions, which potentially fall within the rubric of section 106B. It is procedurally unfair to Mr Mansfield Senior, Ms Macri and the other named entities to compel them to continue as parties in the proceedings in the light of the extensive evidence which has been provided on their behalf to date.
For those reasons, I have reached the conclusion that the wife’s application to join Mr Mansfield Senior, Ms Macri, Mansfield Pty Ltd and Company 1 Pty Ltd should be dismissed with the aspects of her application which seeks orders against each of them. It follows, by necessary implication and in the light of the wife’s concession that her joinder of the Trust A, the Mr Mansfield Senior Family Trust and the Trust C was misconceived that these parties too should be discharged from the proceedings.
In a formal sense the order of the court is the wife’s claim against the second respondent Mr Mansfield Senior, the third respondent Ms Macri, the fourth respondent Company 1 Pty Ltd and the eighth respondent Mansfield Pty Ltd is dismissed.
The fifth named respondent the Trust A, the sixth named respondent Mr Mansfield Senior Family Trust and the seventh named respondent Trust C are removed as parties.
Costs are sought on behalf of the second, third, fourth and eighth respondent. I will direct that written submissions and any necessary affidavit in support of such application be filed within twenty eight days of the date of these reasons for judgment. With the applicant wife to file any written submissions in response to such application and any necessary supporting affidavit within a further twenty eight days of that.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and forty-two (242) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 2 May 2018
2
3
5