Picken & Picken

[2008] FamCA 102

FAMILY COURT OF AUSTRALIA

PICKEN & PICKEN [2008] FamCA 102

FAMILY LAW – PROPERTY – s 799(2) – Leave to wife’s trustee in bankruptcy to intervene – Consent orders

Family Law Act 1975 (Cth)

APPLICANT: MRS PICKEN

RESPONDENT: MR PICKEN

INTERVENOR: Mr P as Official Trustee in Bankruptcy of the wife’s estate

FILE NUMBER: MLF 503 of 2005

DATE DELIVERED: 20 FEBRUARY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 20 FEBRUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERVENOR: Ms THOMSON

SOLICITOR FOR THE INTERVENOR: HUTCHINSON LEGAL

ORDERS

1. THAT Mr P of Solvency and Forensic Accountants, the appointed Trustee in Bankruptcy of the Estate of the Wife be granted leave to Intervene in these proceedings ("the Intervener")

2. THAT the property situate and known as E ("the property") be sold altogether out of Court ("the sale") and the Husband and the Intervener do all acts and things and sign all documents as may be necessary to effect the sale.

3. THAT for the purpose of the sale the Intervener have control and appoint the agent and the listing price, and solicitor and the Intervener to use his best endeavours to ensure the best market price.

4. THAT upon completion of the sale the proceeds of sale be applied as follows:

   (a)first to pay all reasonable costs, commissions and expenses of the sale;

   (b)secondly to discharge all encumbrances and outstanding rates and taxes;

   (c)thirdly the sum of $450,000.00 to the Intervener plus any balance of previous costs orders made against the wife and unpaid, with the wife then to be paid the balance of the proceeds of that sum;

   (d)fourthly, and thereafter the remaining balance to the husband subject to his obligation to pay any remaining Capital Gains Taxes , or arrears of Land Tax or any other taxes or costs or interest thereon.

5. THAT pending the completion of the sale:

   (a)the wife have sole right to occupy the property and pay water rates and household expenses and outgoings;

   (b)the husband pay the council rates;

   (c)the parties hold them their respective interests in the property upon trust pursuant to these Orders;

   (d)the husband and wife are not to encumber the property without the consent in writing of each other party including the Intervener.

6. THAT the husband retain to the exclusion of the wife and the Intervener;

   (a)A street, A, and the Intervener prepare a transmission and a transfer to the husband at the husband's cost;

   (b)B street, A;

   (c)C Street, A;

   (d)the proceeds the trust funds distributed to B Taxation Service save for the moneys paid to the Intervener on account of previous cost orders and the wife pursuant to previous orders of this Court;

   (e)1989 Mitsubishi Pajero;

   (f)2099 AXA Shares;

   (g)MLC Investment Link Bond;

   (h)AXA Managed Investment Plan.

6A.THAT the Intervener do all acts and things and sign all documents required to uplift and discharge all caveats lodged by or on behalf of the wife upon the Titles to the A properties identified in paragraph 6 hereof.

1. THAT paragraphs 7 to 14 (inclusive) of these Orders are binding on the E Superannuation Board ("the Trustee") as Administrator of the E Superannuation Scheme ("the fund").

2. THAT the base amount allocated to the wife in these proceedings out of the interest of the husband in these proceedings in the Fund is $59,289.64 ("the base amount").

3. THAT pursuant to s90MT(1)(a) of the Family Law Act 1975 ("the Act") whenever a splittable payment becomes payable in respect of the interest of the said husband in the Fund the wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 ("the Regulations") using the base amount (provided that such base amount shall not exceed the value of the interest determined under section 90MT(2)) and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

4. THAT Order 9 has effect from the operative time.

5. THAT the operative time for the purpose of Order 10 of these Orders is four (4) business days after the date of service of a sealed copy of these Orders upon the Trustee of the Fund.

6. THAT the husband within fourteen (14) days of becoming entitled to receive a Superannuation benefit from the Fund, provide to the Fund all such forms as necessary to enable it to determine the nature and quantum of the Superannuation entitlement and any other related information it may reasonably require.

7. THAT until such time as the Superannuation split to the wife pursuant to these orders can be rolled over onto a separate account to the wife:

   13.1the husband provide to the wife no less than twenty-eight (28) days written notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the Fund.

   13.2the husband direct and authorize the Trustee of the Fund to communicate with the Wife and/or any person authorized by her in writing;

   13.2.1to answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the Fund, and

   13.2.2to provide to the wife and/or her authorized representative a copy of any notice of any application or request by the Husband which seeks release of entitlements in the Fund in so far as that release may effect the wife's entitlement in the Fund pursuant to these Orders.

   13.3the husband by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the Wife, her heirs, executors, administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to these Orders.

8. THAT in the event that the Superannuation split to the wife pursuant to these Orders can be rolled over into a separate account to the wife each of the parties hereto shall each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

9. THAT unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   (i)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders, the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the wife, save for those items listed in Schedule 1 hereof which are to be collected by the Husband's brother or a person agreed to between the husband and the wife, at an agreed date and time prior to settlement. The Husband is not to attend at the property for this or any other purpose.

   (ii)the husband retain his entitlements to his U Super Fund and the balance after execution of paragraphs 7 to 14 hereof, of his E Superannuation Fund.

   (iii)insurance policies remain the sole property of the beneficiary named therein;

   (iv)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.

   (v)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

10. THAT all extant property and financial applications be otherwise dismissed and leaving only children’s issues in the list of cases awaiting hearing.

11. THAT the ex-tempore reasons for judgment on property and financial issues be transcribed and placed on the Court file and made available to all parties.

    IT IS CERTIFIED

12. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Solicitor appearing as Counsel for the Intervenor.

IT IS FURTHER ORDERED

1. THAT any of the wife's study books, reference material, personal possessions or documents in the Chinese language, if available, are to be retained by the wife or delivered up or returned to the wife forthwith.

THE COURT NOTES

A.THAT pursuant to Section 81 of The Family Law Act 1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

B.THAT upon payment of the wife's debts it is intended by the Intervener that the Wife's bankruptcy will be annulled.

IT IS NOTED that publication of this judgment under the pseudonym PICKEN & PICKEN is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 503 of 2005

MRS PICKEN

Applicant

And

MR PICKEN

Respondent

And

MR P (as Trustee in Bankruptcy of the Estate of the Wife)
Intervenor

REASONS FOR JUDGMENT

1. In the matter of Picken & Picken and Mr P as the appointed trustee of the wife's bankrupt estate I have before me minutes of consent orders.  I record that I have split the property and financial issues from the children's issues.  Hereafter I will make further ongoing interim children's orders.  For the purposes of the property and financial orders the wife appears in person.  She is assisted in court by a Mandarin interpreter and I am satisfied that he has fully interpreted all matters that have occurred in this court to her.  I further record that her understanding of English is more than reasonable but that she has called on the interpreter when required. 

2. The husband appears in person and he has no issues with the English language.  Ms Thomson, solicitor of Hutchinson Legal appears on behalf of the appointed trustee in bankruptcy of the wife's estate, Mr P.  By agreement I will pronounce an order whereby that trustee is legally entitled to intervene in and hereafter be identified as an intervener in these proceedings.  The wife is applicant for settlement of the property.  The principle asset is the E home which should realise $570,000 or thereabouts.  Ultimately of course that price will be determined at auction.

3. The wife currently lives in that home, though previously it was the matrimonial home.  The history of its acquisition and the substantial conflict in evidence between the parties is identified in the many and various affidavits filed with the court.  Otherwise, the husband and/or his parents own the three properties in A identified in paragraph 5 of the consent orders.  To the extent that there is any caveat lodged against the title to those properties by or on behalf of the wife, or the trustee in bankruptcy, they are to be uplifted on the settlement of all financial issues in this case. 

4. The history of the marriage and their two children are before the court in detail on all of the accompanying children's issues and the court has a clear understanding of the current and somewhat depressing financial circumstances of both parties and of the many conflictual matters in relation to the children and associated issues.  These orders provide for the E home to be sold, a real estate agent is to be appointed and a solicitor on the sale.  The intervener will have the conduct thereof.  Clearly there is a very specific obligation upon the intervener to achieve the very best price at auction and that is recorded in paragraph 2 of these orders.

5. From the sale price the reasonable cost and expenses of sale are to be paid. Encumbrances are to be discharged though there is a clear understanding from what the husband has said to the court today that he has paid all and continues to make payments of rates, taxes and outgoings on this E property and he is to continue so to do.  Specifically and hereafter if there is any assessment of land tax, past or present, or capital gains tax or interest, costs or expenses in relation thereto they are to be the sole responsibility of the husband.  The court does not express a view and certainly gives no advice on capital gains tax, though it is a fact that this E property was formally the matrimonial home and is and remains the ongoing home of the wife for residential purposes.

6. The orders reflect in paragraph 3(d) the husband's ultimate financial responsibility in that regard.  What is to happen on the proceeds of sale is that $450,000 is to be held by the intervener.  They are to pay the wife's debts per bankruptcy, primarily her past legal fees and proper interest accrued thereon.  Any surplus arising then of that $450,000 is to be paid subject to these orders wholly and without further deduction to the wife.  It is estimated that there will be a significant sum then paid to the wife.  The advice I received from the solicitor appearing for the intervener was that the wife's debts may well total between a range of $120,000 upwards to $140,000 or thereabouts, but I do not tie down any specific sum in that regard.

7. The full calculations of that sum paid must be made available to the wife as would normally occur on settlement.  The emphasis and the understanding of this judgement is that the obligation on the intervener is then to pay that proper sum to the wife.  The husband has no say or involvement in the quantification of that sum which the intervener properly pays the wife.

8. Otherwise, the wife has no claim against the A properties or against the other personal assets and shares identified in paragraph 5.  In paragraph (d) of order 5 the trust moneys held in the Taxation Service are ultimately to be returned, as to the balance, to the husband subject to the payment of any past cost order which may have been made and is not to be recovered.

9. Superannuation is dealt with in the orders.  The intent of the orders and that which must be put into place is that the wife is now to have paid out to her $59,289.64 and all of those moneys are to come from the husband’s E Superannuation.  The balance then of that superannuation fund together with the whole of the U Superannuation fund are to be paid to or retained by the husband.

10. The husband is to be at liberty through his brother or other agreed person to remove the items in schedule 1 as are identified to belong directly and personally to the children or to his brother or to his parents, plus the cat.  The balance of the furniture, items and chattels in the home as owned by or acquired by the wife or as purchased by the wife, are to remain with her and she is free to remove all of those from the E home to her new residence.  It is central to the structure of the orders that the husband is not otherwise to enter upon or to attend at the home for inspection, removal of items or any other purpose.

11. The court has been assisted by the solicitor for the trustee in the preparation and presentation of these orders today.  More particularly I record that Registrar Riddiford had a compulsory financial conference with the parties, and in that conciliation mode this matter resolved some months ago.  The matter has been awaiting a mention this day.  Mr Riddiford has generously made his time available, has been in court throughout this mention and indeed has further conferred with both parties, particularly the wife, and there has been some fine tuning of the orders today.  These orders are all now by consent and I am satisfied that the parties, the husband and wife, do understand the finality of these orders and that they are both obligated to work with the intervener to sell the property, to discharge his obligations under the order, and otherwise to effect final settlement. 

12. The obligation of a Judge in this court is to determine a just and equitable settlement of the property. That is specifically provided for in s79(2) of the Family Law Act 1975. I have had proper regard to and have evaluated the evidence contained in all of the affidavits of and related to these property and financial issues. Significantly I have consent orders before me which I find are understood by the parties and have been negotiated by them in conciliation and otherwise with an understanding of the financial requirements of the intervenor. I conclude that the orders submitted to the court by consent are proper and do conclude a just and equitable outcome in all of the particular circumstances and facts of this case. Accordingly I include within these extempore reasons for judgment my finding and declaration that the proposed orders do present as a just and equitable division of the property and financial assets of the parties.

13. The property applications before the court are to be discharged and the matter removed from the list of cases awaiting hearing. The intervener has generously indicated that they will engross and forward as soon as practicable to my associate the typed orders. I record that there is a section 81 notation accompanying the orders which the parties sought, and that is to ensure finality.

14. I will have these reasons transcribed, placed upon the court file and made available to the parties.  The reasons have been delivered extempore in the presence of the parties and the intervener's solicitor.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date: 26 February 2008