Oakman and Fenton

[2013] FamCA 139

FAMILY COURT OF AUSTRALIA

OAKMAN & FENTON [2013] FamCA 139

FAMILY LAW – PROPERTY – Interim hearing – Orders to facilitate a settlement

APPLICANT: Mr Oakman

RESPONDENT: Ms Fenton

FILE NUMBER: NCC 2188 of 2010

DATE DELIVERED: 18 February 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 8 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Connor

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Baker Love

Orders

1. That P Pty Limited as trustee of the Fenton Super Fund be joined as a party to the proceedings.

2. That within 7 days of the date of these orders the husband and wife shall do all acts and things and sign all documents necessary to:

   (a)reinstate the wife as a Director of P Pty Limited as Trustee of the Fenton Super Fund;

   (b)reinstate the wife’s shareholding in P Pty Limited as Trustee of the Fenton Super Fund;

   (c)cause Fenton Super Fund to become compliant;

   (d)in the event that she is not a signatory, cause the wife to become a signatory of all bank accounts with the National Australia Bank in the name of Fenton Super Fund.

3. That the husband forthwith account to the wife for the amount of trust proceeds withdrawn by him from the Fenton Super Fund since 1 January 2010 whether in excess of his entitlement as beneficiary of the Fenton Super Fund or otherwise.

4. That the husband shall within 7 days of the date of these Orders provide to the wife copies of all financial records of Fenton Super Fund in his possession, custody and/or control including but not limited to:

   (a)Minutes of meetings of the Fenton Super Fund from 1 July 2010 to date;

   (b)details of all member benefits paid to the husband from 1 July 2010 to date;

   (c)all correspondence entered into with L Accountants including invoices and receipts for professional fees rendered by L Accountants.

5. Pending further order the husband shall do all acts and things and sign all documents necessary in his capacity as Director of P Pty Limited as Trustee for the Oakman Trust to enable the wife to enter into discussion solely and/or together with him with the National Australia Bank (as mortgagee in possession) and to participate to the fullest extent permitted by the bank in the sale of  B Street, Town F, (“Town F”)

   AND in the event that Town F is sold, the net proceeds are to be placed in a Controlled Monies account for and on behalf of the Oakman Trust unless a division otherwise is agreed.

6. That the husband discharge any debt by way of chattel mortgage or otherwise secured on the … Yacht … (“the Yacht”).

7. That the husband in his capacity as Director, E Pty Limited provide the wife with an authority within 7 days from the date of this Order to do all acts and things and sign all documents necessary to cause the yacht and marina pen to be sold at the best price reasonably obtainable by the wife and the proceeds of sale to be paid as follows:

   (a)firstly, the wife the sum of $84,000;

   (b)the balance, if any, to be placed in the Controlled Monies account in trust for the parties.

8. That the husband be restrained from attempting or entering the property known as C Street, Newcastle Suburb D (“Suburb D”) without first obtaining the wife’s written consent.

9. In the event that either party on their own account or as Director and/or Trustee of any entity referred to in these Orders refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

10. The parties shall attend a Conciliation Conference with Registrar Campbell at Sydney Registry at 9.30 am on 19 June 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oakman & Fenton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2188 of 2010

Mr Oakman

Applicant

And

Ms Fenton

Respondent

REASONS FOR JUDGMENT

1. These reasons are in respect of competing interim applications relating to the parties’ property. 

2. This was a long marriage of approximately 30 years.  The parties aged 66 and 56, have five young adult children.  They are now divorced. 

3. An Initiating Application was filed on 23 August 2010 by the husband.  Since then and over the last two and a half years, the parties have negotiated between themselves and with the assistance of a mediator in an attempt to settle their dispute.  More than once they believed they had done so.  A document titled ‘Heads of Agreement’ came into existence.  The wife implemented some parts of the agreement.  However, for reasons including the inability of the parties to secure the necessary refinancing of their debts, the settlement broke down towards the end of 2012.

4. On 25 October 2012, directions were made for the filing of documents for this interim hearing.  The wife filed an Amended Application in a Case and supporting affidavit on 18 December 2012.  The husband filed a Response and supporting affidavit on 31 January 2013.  That the matter took almost a whole day on 13 February 2013 is probably a reflection of the bitter disappointment of the parties that two and a half years, after first filing in this Court, they are effectively not further ahead than they were then.

Orders sought

Self Managed Superannuation Fund

1. The wife sought the following orders:

   (a)to be reinstated as a director and shareholder of the company which is the trustee of the parties’ self managed superannuation fund;

   (b)that the husband be removed as a director of the trustee company and replaced with a corporate trustee;

   (c)an accounting of the trust proceeds drawn by the husband;

   (d)the provision of records;  and

   (e)to be the sole signatory on account.

2. The husband opposed the reinstatement of the wife as trustee and shareholder on the basis of his proposed order that the wife transfer the whole of her interest in the fund to him.  However in due course, counsel for the husband properly conceded that if the Court did not make that order, then the wife must be reinstated in accordance with the law and regulations relating to the fund.  The husband opposed his own removal and replacement by a corporate trustee.  This aspect was not forcefully pursued on behalf of the wife.  That would be a sensible course.  Such a replacement would add to expenses at a time when both parties are being pressed by the bank.  Both parties should be directors and shareholders of their self managed superannuation fund.

The Oakman Trust

1. During the course of the proceedings, information emerged in relation to the sale of a property known to the parties as Town F.  The National Australia Bank as mortgagee in possession has apparently moved to sell that property.  There is an order directed to enabling both parties, together or singularly, to enter into discussions with the bank in order to participate in that proposed sale if that is possible.

The yacht

1. There has been an order in place restraining the husband from disposing of the parties’ yacht.  In his affidavit of 19 June 2012, the husband said he had approached a friend who had agreed to purchase the yacht and that he had agreed to sell the yacht for $175,000.  In the circumstances where there was no communication with the wife about this matter, the wife should have the opportunity to sell the yacht and marina pen at the best price available.  That the husband has borrowed money from a friend who wishes to buy the yacht is not an impediment to that sale by the wife.  Through his counsel, the husband indicated that there was no debt secured on the yacht.

The property order

1. The wife sought a lump sum of $250,000 by way of interim property settlement.  There is insufficient evidence before me to justify making such an order. 

2. The last Financial Statement of the wife was sworn on 14 October 2010.  The last Financial Statement of the husband was sworn 17 August 2010.  The parties’ circumstances have undoubtedly changed, but I am not in a position to assess the relative merits of that application and decline to make that order.

Exclusive occupation

1. The wife has sought an order for exclusive occupation restraining the husband from entering the former family home known as Suburb D.  The wife is living in the home with some and at times all of the parties’ adult children.  In circumstances where there is high tension between the parties over the collapse of their settlement and particularly now where the husband has reverted to applying for the home to be sold, it is appropriate for the wife to enjoy the exclusive occupation of the property and for the husband to come to the property only with the written consent of the wife.  An order has been made accordingly.

Sale of the home

1. In his Application in a Case, the husband sought an order for sale of the family home.  Leaving aside the issue of the wife having insufficient time to respond to that application, again I am not in a position to assess the parties’ financial circumstances.  In my view, the facts do not justify the sale of the matrimonial home as an interim measure at this time.

2. Directions for the further preparation of this matter will be made today. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 18 February 2013.

Associate: 

Date:  7 March 2013.