FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mignone & Barton [2024] FedCFamC2F 344
File number(s): MLC 3380 of 2021 Judgment of: JUDGE BENDER Date of judgment: 20 March 2024 Catchwords: FAMILY LAW – PARENTING – the Husband’s application in relation to parenting arrangements for the parties’ two children aged 14 and 10 – the Husband seeks orders the parties have equal shared parental responsibility for the parties’ children save that he have sole parental responsibility in relation to decisions concerning education and extra-curricular activities - the Wife seeks the parties have equal shared parental responsibility - the Husband seeks the children spend four nights a fortnight with the Wife commencing in Term 2, 2024 - the Wife seeks the children spend five nights a fortnight with her.
FAMILY LAW – PROPERTY - whether the capital received by parties should be characterised as a partial property settlement and “added back” to the property pool in its entirety - whether the Wife’s interest in she and her sister’s business should be included in the asset pool – whether the Court should make a declaration pursuant to Section 78 of the Family Law Act 1975 that the Husband and Wife have a 50% interest in the Suburb B property – the Husband seeks orders he receive 72% of the parties’ realisable assets on the basis that he made a greater contribution at the commencement of the relationship and he has primary care of children –the Wife seeks she receive 60% of the parties’ realisable assets on the basis she made a greater contribution due to an inheritance of $480,000 received towards the end of the relationship and the Husband’s greater earning capacity.
FAMILY LAW – PARENTING – HELD – the parties have equal shared parental responsibility save for issues relating to the children’s education and extra-curricular activities for which the Husband is to have sole parental responsibility if parties are unable to agree – the children spend four nights a fortnight with the Wife.
FAMILY LAW – PROPERTY – HELD - there be a declaration the Husband and Wife have a 50% interest in the Suburb B property – the capital amounts received by the parties by way of part property settlement should not be “added back” to the pool for division between the parties – the Wife’s interest in the business should be included as an assets in the property pool – the parties respective contributions should be considered as equal and the parties’ s 75(2) contributions balance each other out – the parties’ available property assets should be divided equally between them.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 75, 78, 79.
Property (Relationships) Act 1984 (NSW)
Cases cited: AJO & GRO (2005) FLC 93-218
Bevan & Bevan [2013] FamCAFC 116
Bosanac v Commissioner of Taxation (2022) 275 CLR 037
Boss & Permanent Trustee Co Pty Ltd (1999) 198 CLR 334
C & C [2005] FamCA 159
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CaseChat Overview and Summary
Orders
Orders of the court
MLC 3380 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MIGNONE
Applicant
AND:
MS BARTON
Respondent
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
20 MARCH 2024
THE COURT ORDERS THAT:
Parenting
1. The parties have equal shared parental responsibility for making decisions concerning the long-term care, welfare and development of X born 2009 (“X”) and Y born 2013 (“Y”), save that the Father shall have sole parental responsibility in relation to decisions concerning X and Y’s education and extracurricular activities and prior to making the sole ultimate decision on those issues the Father shall:
(a) advise the Mother in writing of the decision intended to be made;
(b) seek the Mother’s written response and input in relation to any decision, with the Mother to provide her response in writing within 7 days;
(c) consider by reference to the best interests of X and Y any response received from the Mother prior to making any decisions; and
(d) advise the Mother in writing as soon as reasonably practicable of the ultimate decision.
2. Should the Mother fail to provide a response to the Father within the seven (7) days as provided in order 1(b) herein, the Father shall make the decision without further consultation with the Mother.
3. X and Y live with the Father.
4. X and Y spend time with the Mother during school terms as follows:
(a) each alternate weekend from the conclusion of school Friday (or 9:00am if X and Y are not attending school) until the commencement of school Monday (or the commencement of school Tuesday if X and Y are not attending school on the Monday);
(b) from the conclusion of school Monday (or 9am if X and Y are not attending school) until the commencement of school Tuesday (or 4:00pm if X and Y are not attending school) on the Monday immediately following the weekend X and Y are with the Father and each alternate week thereafter; and
(c) as otherwise agreed between the parties in writing.
Long summer holidays
5. X and Y spend time with the Mother and Father during the long summer holidays at times to be agreed and failing agreement:
(a) from the conclusion of school on the last day of Term 4 until 9:00am seven days thereafter with one parent and each alternate week with each of the parties thereafter until the commencement of the new school year and
(b) with the parent entitled to the first week determined so as to ensure that X and Y’s time with the Mother in January includes a special occasion.
Term holidays
6. X and Y spend equal time with each of the parties during the Term 1, 2 and 3 holidays each year at times to be agreed and failing agreement:
(a) In even numbered years:
(i) with the Father from the conclusion of school on the last day of term until 4:00pm on the middle day of the holidays and where there are an odd number of days, the second middle day; and
(ii) with the Mother from 4:00pm on the middle day of the holidays and where there are an even number of days, the second middle day, until the commencement of school on the first day of school term.
(b) In odd numbered years:
(i) with the Mother from the conclusion of school on the last day of term until 4:00pm on the middle day of the holidays and where there are an odd number of days, the second middle day; and
(ii) with the Father from 4:00pm on the middle day of the holidays and where there are an even number of days, the second middle day, until the commencement of school on the first day of school term.
7. The time X and Y spend with the parties pursuant to Order 4 resume each school term in accordance with the usual cycle as if the school holiday period had not intervened.
Special occasions
8. Notwithstanding any other order herein, X and Y spend time with the Father for the purposes of celebrating special occasions at times to be agreed and failing agreement:
(a) for the Father’s birthday, if X and Y are not otherwise spending time with the Father, from the conclusion of school (or 4:00pm if X and Y are not attending school) until the commencement of school (or 4:00pm if X and Y are not attending school) on the following day;
(b) on Father’s Day weekend, from 4:00pm on the day preceding Father’s Day until the commencement of school (or 4:00pm if X and Y are not attending school) on the following Monday;
(c) on X and Y’s birthdays, if X and Y are not otherwise spending time with the Father that day, from the conclusion of school (or 4:00pm if X and Y are not attending school) until 7:30pm;
(d) for Christmas in 2024 and each alternate year thereafter from 10:00am Christmas Eve until 4:00pm Christmas Day; and
(e) or Christmas in 2025 and each alternate year thereafter from 4:00pm Christmas Day until 5:00pm on Boxing Day.
9. Notwithstanding any other order herein, X and Y spend time with the Mother for the purposes of celebrating special occasions at times to be agreed and failing agreement:
(a) on Mother’s Day weekend, from 4:00pm on the day preceding Mother’s Day until the commencement of school (or 4:00pm if X and Y are not attending school) on the following Monday;
(b) on X and Y’s birthdays, if X and Y are not otherwise spending time with the Mother that day, from the conclusion of school (or 4:00 pm X and Y are not attending school) until 7:30pm;
(c) for Christmas in 2024 and each alternate year thereafter from 4:00pm Christmas Day until 5:00pm on Boxing Day; and
(d) for Christmas in 2025 and each alternate year thereafter from 10:00am Christmas Eve until 4:00pm Christmas Day.
Hair follicle testing
10. The Mother’s time with X and Y pursuant to these orders, is conditional on the following:
(a) the Mother attending regular therapy with a psychiatrist specialising in addiction medicine (“psychiatrist”) for her mental health, drug rehabilitation and poly substance addiction issues and in relation to such attendances:
(i) attend upon the psychiatrist for no less than 12 months from the date of these orders unless otherwise recommended by the psychiatrist, and otherwise at a frequency recommended by the psychiatrist until such time as the psychiatrist recommends in writing that such engagement and services cease; and
(ii) the psychiatrist shall be provided with a copy of the Father and Mother’s trial affidavits filed in these proceedings and the family reports of Dr C.
(b) the Mother’s psychiatrist be authorised by the Mother and permitted to contact the Father in the following circumstances:
(i) should the Mother cease attending upon him/her in accordance with the recommendations or disengages from therapy;
(ii) should the Mother, in his/her opinion, have relapsed; and
(iii) should the Mother, in his/her opinion, pose a risk to X and Y’s safety or wellbeing.
(c) the Mother will authorise the psychiatrist, to respond to any enquiry by the Father as to whether the Mother is compliant with attending the recommended treatment and to enable the Father to seek a report from the psychiatrist as to the Mother’s attendance, treatment and prognosis at the conclusion of the 12‑month period at his own cost.
(d) the Mother shall undertake a hair follicle test at her sole expense within 7 days of a written request from the Father with such requests:
(i) to not be made more than once every three months for a 12 month period commencing the date of these orders and thereafter to not be made more than every 6 months for a further 12 month period;
(ii) subject to the Mother producing consecutive negative hair follicle tests pursuant to orders 10(d)(i) herein, the Father is not permitted to request any further Hair Follicle Tests at the conclusion of the 24 month period pursuant to order 10(d)(i);
(iii) written notice to undertake the hair collection for hair drug testing purposes may be sent to the Mother care of the Mother’s email address …@... and shall be deemed to have been received by the Mother at the date and time it is sent via email.
11. The Hair Follicle Test pursuant to order 10(d) are to be conducted as follows:
(a) for the detection of alcohol EtG, drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and benzodiazepines;
(b) the testing shall occur at an Australian Workplace Drug Testing Service (“AWDTS”) Clinic or nominee for hair drug testing purposes;
(c) the testing is to be undertaken in accordance with chain of custody procedures at an approved laboratory which is accredited to conduct hair drug testing to the International Standard ISO/IEW 17025:2005 by the relevant accreditation body for that laboratory;
(d) the Mother shall not dye, bleach or colour her head hair;
(e) the Mother shall maintain hair length of at least 6cm;
(f) the cost of the testing is to be met solely by the Mother; and
(g) each party or their legal representative is at liberty to provide AWDTS with a copy of these orders.
12. The Mother provides to her psychiatrist and AWDTS:
(a) a copy of these orders;
(b) authority to confirm with the Father that engagement with her psychiatrist is continuing at the frequency recommended by psychiatrist; and
(c) authority to AWDTS that all hair follicle test results undertaken by the Mother is sent directly to the Father’s via email address …@....
13. Should the Mother do any of the following:
(a) test positive for illicit substances via a hair follicle test save for alcohol and medication used in accordance with order 26;
(b) refuse to take a hair follicle test within the time requested pursuant to order 10(d) herein;
(c) cease attending treatment with her psychiatrist in compliance with order 10(a) herein;
the Mother’s time with X and Y pursuant to Orders 4 to 9 herein be suspended.
14. In the event the Mother’s time with X and Y is suspended pursuant to order 13 herein, the Mother spend time with X and Y as follows:
(a) her time with X and Y will immediately revert to being supervised for the entire visit by the maternal Grandmother, Ms D or such other supervisor as agreed between the parties in writing, for a period of no less than six (6) months; and
(b) the Father shall be at liberty to request that the Mother undergo hair follicle testing on a regular basis, at her sole cost for the following 12-month period (being no more than 4 tests in one year).
(c) supervised time for all visits shall continue until such time as the Mother has produced two (2) consecutive clean hair follicle tests at approximate 3-month intervals at the Father’s request, after which time the Mother’s visits with X and Y shall revert to being unsupervised pursuant to Orders 4 to 9 herein.
Communication
15. The parents facilitate X and Y communicating with the other parent at all reasonable times when requested by X and/or Y.
16. The parties email to communicate about X and Y and their care, welfare and development.
17. The parties communicate by SMS text message or telephone in the case of emergency or urgent matters.
18. The parties must notify each other of any changes to their telephone numbers, email addresses or residential addresses within 48 hours of any change.
Changeovers
19. For the purposes of changeover:
(a) where changeover coincides with the commencement or conclusion of school changeover occur at X and Y’s school; and
(b) changeover otherwise occur at E Park in Suburb F unless otherwise agreed between the parties in writing.
Travel
20. The Father and Mother each be permitted to travel with X and Y interstate or overseas during any period X and Y are in their care pursuant to these orders or by agreement between them upon the following terms and conditions unless otherwise agreed in writing:
(a) should the intended travel be overseas the travelling party provide the other party with the details of the country or countries they are travelling to, with whom X and Y are travelling with and the dates of the travel, not less than thirty (30) days prior to the departure; and
(b) the parties each ensure that X and Y can be contacted by telephone and FaceTime for the purposes of communication with the other parent pursuant to these orders.
21. In relation to X and Y’s passports, unless otherwise agreed in writing:
(a) each of the Father and Mother do all such things and sign all documents necessary to obtain or renew X and Y’s passport within seven (7) days of receiving a request from the other party with the cost to be shared equally between them; and
(b) X and Y’s passports are otherwise to be held by the Father and are to be provided to the Mother within seven (7) days of receiving notice of overseas travel or as may be required to obtain visas for travel, and returned to the Father within seven (7) days of X and Y’s return to the Commonwealth of Australia.
Extracurricular activities
22. If X and Y are enrolled to attend extracurricular activities during the time they spend with the Mother, at least 24 hours prior to the commencement of the season, or at the request of the Mother in writing, the Father provide the Mother with the details of X and Y’s activities via text or email, in order for her to facilitate their attendance.
Health, education and information
23. Each party be and are hereby authorised to:
(a) provide a copy of these orders to G School (or such other school as attended by X and Y) and each of X and Y’s medical practitioners;
(b) obtain copies of each of X and Y’s medical, counselling, dental and health records directly from X and Y’s treating practitioners;
(c) attend all school events and extracurricular activities and events which parents normally attend and attend X and Y’s sporting events during the time X and Y are spending with the other parent;
(d) obtain copies of all school notices, reports, newsletters, photos and similar documents directly from X and Y’s school and administrators of extracurricular, sporting and other activities.
24. Each party do all acts and things and sign all such documents as may be required to:
(a) keep the other advised of any medical or health issues relating to X and Y or either of them including, but not limited to providing particulars of any medication that has been prescribed to X and Y and ensuring that the medication is provided to the other party at changeover, and the name and contact details of the treating practitioner who prescribed the medication;
(b) keep the other advised of any significant injury or medical condition suffered or treatment undergone while X and Y are in their respective care, as soon as is practicable, and each party be permitted to liaise directly with X and Y’s treating medical practitioner, dental or other health specialist in relation to X and Y’s health and welfare;
(c) provide the other party with all details in relation to extracurricular activities including details of the coaches, managers, other players and WhatsApp groups at the commencement of the season and thereafter it will be the responsibility of each parent to make their own enquiries as to the arrangements/fixtures of those activities.
Injunctions
25. Without admission as to necessity for same, the parties be and are each hereby restrained by injunction by themselves, their servants or agents from:
(a) denigrating or criticising the other parent or members of the other parent’s family to or in the presence of the hearing of X and/or Y;
(b) discussing any aspect of these proceedings or any associated proceedings to or in the presence of or within the hearing of X and/or Y; and
(c) showing any documents related to these proceedings or any associated proceedings directly or indirectly to X and/or Y, including through a third party.
26. For 24 hours prior to and during all periods of time X and Y spend time with the Mother, the Mother be restrained by injunction from ingesting, consuming of using or otherwise being under the influence of alcohol and/or drug or substance, save and except for:
(a) any legal medication prescribed for the Mother by a registered medical practitioner, and taken or used by the Mother strictly in accordance with such prescription; and
(b) any over the counter legal medication or pharmaceutical substance ordinarily sold in major supermarkets and taken or used by the Mother strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
Property
27. Pursuant to Section 78 of the Family Law Act 1975 (Cth) (“The Act”) the Court declares that the Husband and Wife have a 50% interest in the property situate at H Street, Suburb B, in the State of Victoria more particularly described in Certificate of Title Volume … Folio … (“the Suburb B property”).
28. On or before 18 June 2024 (“the date”), the Husband do all things necessary to transfer to the Wife at the expense of the Wife all his right title and interest in the Suburb B property (“the Suburb B transfer”).
29. Contemporaneously with the Suburb B transfer, the Wife refinance the loan with J Bank secured by mortgage … over the Suburb B property (“the Suburb B property mortgage”) such that the Husband is removed as a party to the mortgage and, further to do all things to remove the Husband as a guarantor to that loan.
30. On or before 19 April 2024, the Husband advise the Wife in writing if he wishes to retain the real property situate and known as K Street, Suburb L in the state of Victoria more particularly described in Certificates of Title volume … folio … and volume … folio … (“the Suburb L property”).
31. In the event the Husband advises the Wife he wishes to retain the Suburb L property, the Husband shall pay to the Wife the sum of $822,234 (“the payment”) withing 30 days of the Wife’s compliance with Order 29 above (“the date”).
32. Contemporaneously with the payment the Wife transfer to the Husband at the expense of the Husband all her right title and interest in the Suburb L property and refinance the loan secured by mortgage … over the Suburb L property into his sole name.
33. If the Husband fails to make the payment by the date:
(a) The Husband pay interest on the Payment at the rate prescribed from time to time by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“Penalty Interest”) for the period of default compounding daily and payable weekly;
(b) The Husband forthwith do all things necessary and sign all documents as are required to transfer Suburb L to the Wife as trustee for sale (“Default Sale”) by public auction on the following terms:
(i) with the selling agent as the wife shall appoint (“Selling Agent”);
(ii) the costs of, and incidental to, the advertising, marketing and preparation of the Default Sale be paid by the husband as and when they fall due and the Wife be indemnified by him in respect thereof;
(iii) the contract of sale be unconditional, for cash and of no longer than 60 days duration;
(iv) the Husband do all things necessary to co-operate in every way with the Selling Agent, including but not limited to:
A. making the key available to the Selling Agent;
B. allowing inspection of M Street at all reasonable times requested by the Selling Agent;
C. signing all documents requested by the Selling Agency as authorised by the Wife ;
(v) upon the settlement of the Default Sale, the proceeds of sale be paid in the following manner and priority:
A. first to meet the Selling Agent’s commission;
B. secondly, in discharge the Suburb L Mortgage;
C. thirdly in adjustment of rates, taxes and like apportionable outgoings;
D. fourthly, in payment of the reasonable costs of the conveyance;
E. fifthly, to pay the wife so much of the Payment as remains outstanding together with any Penalty Interest accrued;
F. finally, the balance, if any to the Husband.
(c) the Husband by himself his servants and agents, be and is hereby restrained from doing anything or attempting so to do, which may have the effect of impeding or in any manner adversely affecting the successful Default Sale and/or the proceeds thereof being paid to the Wife.
34. If in accordance with Order 30 herein the Husband advises the Wife he does not wish to retain the Suburb L property then the parties are to do all things necessary to place the Suburb L property on the market for sale (“the sale”) and upon settlement of the sale the proceeds be paid as follows:
(a) to meet all sale costs;
(b) secondly to discharge the mortgage;
(c) thirdly to pay to the parties an amount such that they each receive an over-all equal split of the net non-superannuation assets.
and for the purposes of Order 34 (c) herein the parties net non-superannuation assets of the parties consists of:
· the net proceeds of sale of the Suburb L property;
· the parties 50% equitable interest in the Suburb B property being $431,982 (to be retained by the Wife);
· the monies held on trust for the parties after payment of the GST on the sale of the Suburb N property being $180,890 (to be retained by the Wife);
· the Wife’s interest in P Business being $218,500 (to be retained by the Wife); and
· the Husband’s Motor Vehicle 1 (to be retained by the Husband).
35. Pending the parties’ compliance with Order 34 or the Default Sale (whichever applies):
(a) The Husband have sole right to use and occupy Suburb L;
(b) The parties hold their respective interests in Suburb L upon trust pursuant to these orders; and
(c) Neither party encumber, further encumber, transfer or otherwise dispose of Suburb B or Suburb L.
36. The Husband pay all instalments pursuant to the mortgage repayments (principal and interest), rates, taxes, insurances and apportionable outgoings for Suburb L as they fall due and indemnify the Wife in relation to same.
37. On or before 17 April 2024, the funds held on trust for the parties KHQ lawyers in the controlled account with O Bank (account number …47) be paid as follows:
(a) the sum of $82,372.93 to the Husband on account of the capital gains taxation payable on the sale of the Suburb N property;
(b) the balance to the Wife.
38. The Wife retain all her interests in Q Pty Ltd which operates P Business and hereafter the Wife do indemnify the Husband from any and all past, present and future liabilities with respect to Q Pty Ltd including but not limited to:
· any and every tax liability; and
· any and every liability in relation to any loan accounts or debts.
39. The parties each remain solely liable for and indemnify the other for any past, present and/or future liabilities of whatsoever nature or kind including credit card debts, loans or taxation liabilities held in their own respective names.
Children’s Bank Accounts and Generation Bonds
40. On or before 3 April 2024, the Wife do all things and sign all documents necessary to remove her name as an account holder and/or joint signatory to the following accounts:
(a) R Bank accounts held for X account numbers ending …18 and …19; and
(b) S Finance Bond accounts held for X and Y respectively account numbers …21 and …22.
41. On or before 10 April 2024, the Husband do all things and sign all documents necessary to transfer the funds held for X in the R Bank online saver account ending …9.1 into X’s R Bank account ending …19.
42. Thereafter, the R Bank accounts held for X account numbers ending …18 and …19, R Bank accounts held for Y account numbers ending …18 and …19, and S Finance Bond accounts held for X and Y respectively account numbers …21 and …22:
(a) be held on trust for X and Y by the Husband until the children reach the age of 25 years;
(b) the Wife be at liberty to obtain statements in relation to the said accounts;
(c) pending the children attaining the age of 25 years the Husband be restrained from accessing or disbursing the monies held in the accounts other than by joint written agreement with the Wife;
(d) upon X attaining 25 years of age the Husband do all things necessary and sign such documents as required to disburse 100 per cent of the monies held in the R Bank accounts ending …18 and …19 and the S Finance Bonds to X; and
(e) upon Y attaining 25 years of age the Husband do all things necessary and sign such documents as required to disburse 100 per cent of the monies held in the R Bank accounts ending …18 and …19 and the S Finance Bonds to Y.
Superannuation
43. On or before 3 April 2024, the parties do all acts necessary to cause T Accountants (“the Accountants”) to prepare an updated set of accounts for the Mignone Superannuation Fund (“SMSF”) as at the date of the transfer of the Wife’s transferable benefits.
44. In accordance with section 90XT(1)(b) of the Act:
(a) the Husband is entitled to be paid the specified percentage being 100%, of each splittable payment from the Wife’s interest in the SMSF; and
(b) the Wife’s entitlement in the SMSF is correspondingly reduced.
45. Mignone Superannuation Fund Pty Ltd (“the SMSF Trustee”) do all things necessary to:
(a) calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Father in the immediately preceding order; and
(b) pay the entitlement whenever the Trustees make a splittable payment out of the Mother’s interest in the SMSF.
46. Orders 44 and 45 have effect from the Husband’s operative time and the Husband’s operative time is the end of the day upon which the transfer of the Wife’s transferable benefits occurs.
47. In accordance with section 90XT(4) the base amount is equal to the difference between the Husband’s current member entitlement in the SMSF and 50% of the parties' combined member entitlements less the sum of $4,101. In determining the 50% entitlement, the costs arising including tax payable or tax refunds receivable as a result of converting or liquidating assets of the SMSF for the purposes of effecting the transfer of the whole of the Mother’s transferable benefits, shall be taken into account.
48. In accordance with section 90XT(1)(a) of the Act:
(a) the Wife is entitled to be paid, using the base amount allocated in the immediately preceding Order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b) the Husband’s entitlement in the SMSF is correspondingly reduced.
49. The SMSF Trustee do all things necessary to:
(a) calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 the entitlement created for the Wife in the immediately preceding order; and
(b) pay the entitlement whenever the Trustees make a splittable payment out of the Husband’s interest in the SMSF.
50. Order 49 has effect from the Wife’s operative time which is the time immediately following the Husband’s operative time.
51. Upon service by the SMSF Trustee of the payment split notice to the Husband and the Wife, the Wife do all such acts and things and sign all such documents as may be necessary to transfer the Wife’s transferable benefits from the SMSF to a complying superannuation fund of the Wife’s choosing (“the Wife’s New Superannuation Fund").
52. Within 14 days of receiving the Wife’s request for transfer pursuant to Order 51, the SMSF Trustee do all things necessary to effect the transfer of the whole of the Wife’s transferable benefits.
53. Within 7 days of upon compliance with Order 52, the Wife do all acts necessary to:
(a) sign in her capacity as a director of the trustee, the financial returns of the SMSF as required;
(b) resign as a director and secretary of the SMSF Trustee;
(c) transfer to the Husband (or as he directs) all her shareholding in the SMSF Trustee; and
(d) resign as a member of the SMSF.
54. Pending the transfer of the Wife’s interest in the SMSF pursuant to these Orders, each party:
(a) is restrained from dealing with, charging, encumbering or disposing of the SMSF's assets other than in accordance with the terms of these orders or by agreement in writing;
(b) shall immediately revoke any binding death benefit nomination already made; and
(c) is restrained from doing any such act or thing which would defeat, extinguish or reduce the entitlement of either party under these orders.
55. As at the date of these Orders, the Husband indemnify and keep the Wife effectively indemnified against all liability of and in relation to the SMSF, and contemporaneously with Order 53, secure a full release from any liability the Wife may have guaranteed in relation the SMSF.
Other Orders
56. The Husband shall otherwise retain for his sole use and possession the following:
(a) his Motor Vehicle 1;
(b) all his separate savings and investments;
(c) all his shareholdings including portfolios and accounts held with CommSec, U Finance, V Finance, NAB Trading account and W Finance;
(d) all the furniture and effects in his possession;
(e) all life insurance or assurance policies presented over his life;
(f) all his superannuation interests (subject to the split as provided in these orders);
(g) all his pension and employee entitlements; and
(h) all other personal property of the Husband in the Husband’s possession or any other assets not otherwise specified herein.
57. The Wife shall otherwise retain for her sole use and possession the following:
(a) her Motor Vehicle 2;
(b) all her separate savings and investments;
(c) all the furniture and effects in her possession;
(d) all life insurance or assurance policies presented over her life;
(e) all her superannuation interests (including the split as provided in these orders);
(f) all her pension and employee entitlements; and
(g) all other personal property of the Wife in the Wife’s possession or any other assets not otherwise specified herein.
58. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a) each party be solely entitled to the exclusion of the other party to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b) each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c) insurance policies remain the sole property of the owner named thereon;
(d) monies standing to the credit and debit of either party in any bank accounts are to become the property of that party;
(e) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
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Evidence
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Decision
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