FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mulligan & Clovis [2025] FedCFamC2F 306
File number(s): NCC 966 of 2022 Judgment of: JUDGE BETTS Date of judgment: 11 March 2025 Catchwords: FAMILY LAW – Property settlement proceedings – 20‑year relationship – complex entities – add-back arguments – just and equitable outcome. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law (Superannuation) Regulations 2001
Federal Circuit & Family Court of Australia (Family Law) Rules 2021
Cases cited: Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1980) 146 CLR 336
Kowaliw & Kowaliw (1981) FLC 91-092
Mallet & Mallet (1984) 156 CLR 605
Nettler & Nettler [2009] FamCAFC 185
Ramsay & Ramsay (1997) FLC 92-742
Division: Division 2 Family Law Number of paragraphs: 258 Date of last submission/s: 29 August 2024 Date of hearing: 11-14 June 2024 & 28-29 August 2024 Place: Newcastle Counsel for the Applicant: Mr Tregilgas Solicitor for the Applicant: Mullane & Lindsay Counsel for the Respondent: Mr Levick Solicitors for the Respondent: Tonkin Drysdale Partners ORDERS
NCC 966 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MULLIGAN
Applicant
AND: MS CLOVIS
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
11 MARCH 2025
Amended pursuant to rule 10.13(1)(f) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 2 April 2025
THE COURT ORDERS THAT:
1.Within three (3) days, the partes shall do all things and sign all documents to authorise the funds standing to their credit on the trust/controlled moneys accounts of Tonkin Drysdale Partners (but not the funds standing to the credit of the Mulligan Clovis Self-Managed Superfund) to be disbursed to the Husband as to $458,807 plus 52% of any additional interest accruing since the hearing date, and $630,818 to the Wife plus 48% of any additional interest accruing since the hearing date.
2.Within twenty-eight (28) days, the parties shall do all things and sign all documents to cause any and all loans owing by the Respondent Wife to the Mulligan Clovis Family Trust to be transferred into the name of the Applicant Husband. The Applicant Husband hereby indemnifies and shall keep indemnified the Respondent Wife with respect to any such loan accounts and any other liabilities associated with the Mulligan Clovis Family Trust save for tax liabilities of the Wife arising from the past distribution to her of income from the Mulligan Clovis Family Trust.
3.The Wife shall indemnify the Husband and the Mulligan Clovis Family Trust in respect of any liability of whatsoever nature and kind arising from offices held or in respect of income tax payable as a consequence of having been a shareholder or director of the company or in respect of any loan or asset transferred to, or income declared or payable to the Husband and/or the Mulligan Clovis Family Trust.
4.Within twenty-eight (28) days, the Applicant Husband, in his capacity as director of the corporate trustee of Mulligan-Clovis Pty Ltd, shall do…
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CaseChat Overview and Summary
The court examined the nature and extent of the contributions made by each party to the various assets, considering both direct and indirect contributions. It assessed the fairness of the distribution of assets, taking into account the principles set out in the Family Law Act 1975. The court also had to interpret the relevant provisions of the Family Law (Superannuation) Regulations 2001 in relation to the division of superannuation interests. The court's reasoning focused on ensuring that the outcome reflected the contributions of both parties and achieved a balance that was considered just and equitable.
The court ordered the distribution of funds held in trust accounts, loans, and shares, ensuring that both parties received a fair share of the assets. It also directed the transfer of superannuation interests, specifying the exact entitlements and payment mechanisms. The court provided detailed instructions for the implementation of these orders, including timelines and responsibilities of the parties. The final orders ensured that the division of assets was implemented in a manner that complied with legal requirements and achieved a fair outcome for both parties.
Orders
Orders of the court
NCC 966 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MULLIGAN
Applicant
AND:
MS CLOVIS
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
11 MARCH 2025
Amended pursuant to rule 10.13(1)(f) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 2 April 2025
THE COURT ORDERS THAT:
1. Within three (3) days, the partes shall do all things and sign all documents to authorise the funds standing to their credit on the trust/controlled moneys accounts of Tonkin Drysdale Partners (but not the funds standing to the credit of the Mulligan Clovis Self-Managed Superfund) to be disbursed to the Husband as to $458,807 plus 52% of any additional interest accruing since the hearing date, and $630,818 to the Wife plus 48% of any additional interest accruing since the hearing date.
2. Within twenty-eight (28) days, the parties shall do all things and sign all documents to cause any and all loans owing by the Respondent Wife to the Mulligan Clovis Family Trust to be transferred into the name of the Applicant Husband. The Applicant Husband hereby indemnifies and shall keep indemnified the Respondent Wife with respect to any such loan accounts and any other liabilities associated with the Mulligan Clovis Family Trust save for tax liabilities of the Wife arising from the past distribution to her of income from the Mulligan Clovis Family Trust.
3. The Wife shall indemnify the Husband and the Mulligan Clovis Family Trust in respect of any liability of whatsoever nature and kind arising from offices held or in respect of income tax payable as a consequence of having been a shareholder or director of the company or in respect of any loan or asset transferred to, or income declared or payable to the Husband and/or the Mulligan Clovis Family Trust.
4. Within twenty-eight (28) days, the Applicant Husband, in his capacity as director of the corporate trustee of Mulligan-Clovis Pty Ltd, shall do all things and sign all documents to transfer to the Wife, or to such entity as the Respondent Wife may direct, the Mulligan Clovis Family Trust’s shareholding in B Pty Ltd and resign from any office he may hold in such entity.
5. Upon the compliance with orders 2 and 3 hereof, the Respondent Wife shall within seven (7) days of a written request to do so sign all documents in order to allocate to the Applicant Husband all her right title and interest in the Mulligan Clovis family Trust or its corporate trustee.
6. The Respondent Wife is hereby declared the sole legal and beneficial owner of the parties’ valuables collection and the Applicant Husband shall forthwith do all things and sign all documents as may be requested of him by the Respondent Wife in order to give effect to this order.
7. Within twenty-eight (28) days and with respect to the Mulligan Clovis Self-managed Superfund (“the Fund”), the parties shall do all things and sign all documents in their capacity as directors of C Pty Ltd (“the corporate trustee”) in order to give effect to the following:
(a) Within seven (7) days, do all things and sign all documents to instruct the Fund’s accountants to calculate the net membership entitlements of the Applicant Husband and Respondent Wife respectively in the Fund;
(b) Immediately following compliance with Order 7(a):
(i) Pursuant to paragraph 90XT(1)(a) of the Family Law Act 1975, whenever a splitable payment becomes payable to the Applicant Husband from his interest in the Fund, the Respondent Wife is entitled to be paid the base sum of $89,022 out of the Applicant Husband’s member amount in the Fund;
(ii) The payment at Order 7(b)(i) hereof shall consist of an in specie transfer of the principal and interest contained within Tonkin Drysdale Partners controlled moneys account …89; and
(iii) The Applicant Husband’s entitlement (or the entitlement of such other person to whom a splitable payment may be made out of the Applicant Husband’s interest) in the Fund, is correspondingly reduced.
(c) Immediately upon compliance with Order 7(b), the parties in their respective capacities as directors of the corporate trustee shall cause it to do all such acts and things and sign all such documents as may be necessary to:
(i) Calculate in accordance with the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement for the Respondent Wife created by this order; and
(ii) Pay the entitlement whenever the corporate trustee makes a splittable payment out of the Applicant Husband’s interest in the Fund.
(d) Immediately prior to the trustees complying with Order 7(c), the parties in their respective capacities as directors of the corporate trustee shall cause a meeting of the corporate trustee to be held in accordance with the Rules of the Fund’s Trust Deed and in that meeting shall cause it to:
(i) Calculate the amount of transferrable benefits;
(ii) Authorise the transfer of the transferrable benefits to the Respondent Wife; and
(iii) Authorise the consolidation of the Respondent Wife’s interest in the Fund.
(e) Order 7(b) has effect from the operative time and the operative time is one (1) minute following the Trustee’s compliance with Order 7(c).
(f) Before the close of the meeting of the Trustees as contemplated by Order 7(d) hereof, the Respondent Wife shall do all such acts and things and sign all such documents prepared by the Applicant Husband as may be necessary to:
(i) Resign her membership of the Fund;
(ii) Resign as director of the corporate trustee,
(iii) Transfer her share in the corporate trustee to the Applicant Husband or as he may direct; and
(iv) Transfer and assign to the Applicant Husband all her right title and interest in any loan account that she has with the corporate trustee.
(v) Rollover her superannuation interest (inclusive of her super-split entitlement pursuant to these Orders) to a complying superannuation fund and, for the avoidance of doubt, such rollover shall be in the form of the Fund’s cash on deposit held on Tonkin Drysdale Partners Trust Account arising from the Fund’s sale of D Street, Town E, NSW.
(g) The Trustee of the Fund, having been granted procedural fairness, is bound by Order 7.
(h) Pending compliance with Order 7 herein, the Applicant Husband be restrained from:
(i) Giving to a trustee a binding death nomination in favour of an person which would have the effect of reducing the value to the Respondent Wife of the splitting order made in order 7(b) hereof; and
(ii) Making any application to the trustee to withdraw any monies or property from her member account in the Fund or to roll out of the Fund his member account in it.
(i) The Applicant Husband shall thereafter be solely responsible for the Fund and shall indemnify the Respondent Wife in relation to the Fund for all liabilities of whatsoever nature and kind;
(j) The Applicant Husband and Respondent Wife shall personally, and in their capacities as shareholders and directors of the corporate trustee, comply with all legal requirements, including under the Superannuation and Taxation Law, to properly and expeditiously implement the provisions of this order.
8. Unless specified in these orders and save for the purposes of enforcing any moneys due under these or any subsequent orders, pursuant to section 78 of the Family Law Act 1975 each party:
(a) Shall be solely entitled to the exclusion of the order, to all property (including choses-in-action) in the name of the possession of such party as at the date of these orders and for that purpose, bank accounts are deemed to be in the possession of the person named as account holder;
(b) Shall be solely responsible for and shall indemnify the other against, any and all debts attaching, encumbering or relating to the property in their respective possession and any items of property to which that party is entitled pursuant to these orders, and any debts in their respective sole names; and
(c) Forgoes any claim they may have to any superannuation benefits belonging to or earned by the other except as dealt with in these orders.
9. Pursuant to section 106A of the Family Law Act 1975, in the event that a party neglects or refuses to sign any deed or instrument necessary to give effect to these orders within five (5) days of a written request to do so by the other party, then upon the filing of an Affidavit evidencing such neglect or refusal a Judicial Registrar of the Newcastle Federal Circuit and Family Court of Australia (Division 2) or such other Court Officer appointed in his or her stead, is empowered to:
(a) Execute such deed or instrument in lieu of the defaulting party and do all acts and things necessary to give validity and operation to such deed or instrument; and
(b) Make such order as it considers just as to the payment of costs and expenses of and incidental to the preparation of such deed or instrument and its execution.
10. If either party seeks a costs order, that party is to file and serve an Application in a Proceeding, supporting Affidavit and written submissions within twenty-eight (28) days.
11. If neither party brings a costs application pursuant to these orders, the proceedings will otherwise be removed from the list of Active Pending Cases.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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