Pickering & Pickering (No 2)
[2023] FedCFamC2F 1168
•31 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pickering & Pickering (No 2) [2023] FedCFamC2F 1168
File number(s): MLC 3557 of 2019 Judgment of: JUDGE O'SHANNESSY Date of judgment: 31 August 2023 Catchwords: FAMILY LAW – final orders – draft orders sent to parties with reserved reasons – parties agree to minor changes to proposed final orders – changes found to be just and equitable. Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 6 Date of hearing: 31 August 2023 Place: Melbourne Counsel for the Applicant: Mr Carne Solicitor for the Applicant: Sayer Jones Solicitor for the Respondent: Ian Brooks ORDERS
MLC 3557 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PICKERING
Applicant
AND: MR PICKERING
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
31 AUGUST 2023
THE COURT ORDERS THAT:
1.All previous Orders relating to property and spousal maintenance be discharged.
2.That the Husband indemnify the Wife as to 42.5% of any part of the K School fees outstanding as at 4 May 2022 that she has paid since then and the Wife indemnify the Husband as to 57.5% of any part of the school fees outstanding (but not legal costs) as at 4 May 2022 that he has paid since then.
IN THE EVENT THE WIFE SEEKS TO RETAIN THE SUBURB O PROPERTY
3.In the event the Wife seeks to retain her interest, and obtain the Husband’s interest in the real property known as N Street, Suburb O (“the Suburb O property”) then on or before 4.00 pm on Thursday 28 September 2023 (28 days after these orders) (‘the election date’) the Wife advise the Husband in writing (by email directly to the Husband and to his solicitors) of her decision.
4.In the event the Wife has advised the Husband in writing in compliance with the previous order of her decision to retain her interest and obtain the Husband’s interest in the Suburb O property then;
(a)On or before 4.00 pm Monday 27 October 2023 (‘the due date’) the Wife pay to the Husband the sum of $391,038 ($777,654 minus $386,616) LESS the following:
(b)$37,700 on account of arrears of payments due pursuant to the orders of 29 April 2019 (‘the 29 April 2019 arrears’); and
(c)$4,000 on account of the Wife’s costs of 17 March 2020 (‘the Wife’s 17 March 2020 costs’); and
(d)$4,000 on account of the Wife’s costs of 9 July 2020 (‘the Wife’s 9 July costs’); and
(e)being a total payment (a-d) of $345,338 less the further sum representing 42.5% of the school fees levied and invoiced by the K School from 4 May 2022 to the due date (with such amount to be confirmed in writing by the school bursary) (“the payment”).
5.Contemporaneously with the payment:
(a)Wife pay, discharge and indemnify the Husband against all payments and liability pursuant to the mortgage name the debt to M Bank secured against the Suburb O property and all apportionable rates and taxes of or with respect to the Suburb O property of whatsoever nature and kind (‘the refinance’); and
(b)The Husband do all such things and execute all such documents as may be necessary to transfer to the Wife at the expense of the Wife all of his right, title and interest in the Suburb O property (‘the transfer’);
(c)Subject to order 2 herein the Wife pay discharge and indemnify the Husband against arrears of levied school fees owed to K School as at the due date.
6.Pending the refinance, the payment and the transfer:
(a)The Wife have the sole right to occupy the Suburb O property and during such right of occupation the Wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)Neither party encumber the real property without the consent in writing of the other party save to the extent necessary to comply with these orders.
SALE AND PERCENTAGE DIVISION IN DEFAULT OF PAYMENT
7.In the event has advised the Husband of her election to retain the Suburb O property and obtain the Husband’s interest therein, and the Wife fails to make the payment to the Husband and/or the refinance on or before the due the date, then the parties are to do all acts and things to place the Suburb O property on the market for sale (‘the default sale’) on the following terms and conditions:
(a)The parties shall agree on a selling agent, and failing agreement, the Wife shall provide to the Husband the names of 3 real estate agents and the Husband shall nominate one of those agents within 7 days;
(b)The reserved price shall be as agreed and failing agreement, $1,500,000; and
(c)The settlement period be as agreed and failing agreement, 60 days; and
(d)There be liberty to apply as to terms and conditions of the default sale.
8.Upon settlement of the sale of the Suburb O property, the proceeds of the sale be applied as follows:
(a)First, to all costs, commissions, and expenses of the sale;
(b)Secondly, to discharge any mortgage and any other encumbrance effecting the real property;
(c)Thirdly, to pay any arrears of levied school fees owed to K School as at the date of settlement;
(d)Fourthly, 57.5% of the proceeds of sale to the Wife; and
(e)Fifthly, 42.5 % of the proceeds of sale to the Husband; and
(f)From the Husband’s 42.5% part or share pay to the Wife the following sums:
(i)$37,700 on account of arrears of payments due pursuant to the orders of 29 April 2019 (‘the 29 April 2019 arrears’); and
(ii)$4,000 on account of the Wife’s costs of 17 March 2020 (‘the Wife’s 17 March 2020 costs’); and
(iii)$4,000 on account of the Wife’s costs of 9 July 2020 (‘the Wife’s 9 July costs’); and
(iv)such sum representing 42.5% of the school fees levied and invoiced by K School from 4 May 2022 to the date of settlement that the Wife has already paid (with such amounts and payments to be confirmed in writing by the school bursary).
IN THE EVENT THE WIFE DOES NOT ADVISE OF ELECTION TO RETAIN THE SUBURB O PROPERTY
9.In the event the Wife has not advised the Husband in writing of her election to retain her interest and obtain the Husband’s interest in the real property known as N Street, Suburb O (“the Suburb O property”) as provided in these orders, then on or before 4.00 pm on Thursday 5 November 2023 the parties are to do all acts and things to place the Suburb O property on the market for sale (‘the sale for division’) on the following terms and conditions:
(a)The parties shall agree on a selling agent, and failing agreement, the Wife shall provide to the Husband the names of 3 real estate agents and the Husband shall nominate one of those agents within 7 days;
(b)The reserved price shall be as agreed and failing agreement, $1,500,000; and
(c)The settlement period be as agreed and failing agreement, 60 days; and
(d)There be liberty to apply as to terms and conditions of the sale for division.
10.Upon settlement of the sale of the Suburb O property, the proceeds of the sale be applied as follows:
(a)First, to all costs, commissions, and expenses of the sale;
(b)Secondly, to discharge any mortgage and any other encumbrance effecting the real property;
(c)Thirdly, to pay any arrears of levied school fees owed to K School as at the date of settlement;
(d)Fourthly, 57.5% of the remaining proceeds of sale to the Wife; and
(e)Fifthly, 42.5 % of the remaining proceeds of sale to the Husband; and
(f)From the Husband’s 42.5% part or share the following sums be paid to the Wife:
(i)$37,700 on account of arrears of payments due pursuant to the orders of 29 April 2019 (‘the 29 April 2019 arrears’); and
(ii)$4,000 on account of the Wife’s costs of 17 March 2020 (‘the Wife’s 17 March 2020 costs’); and
(iii)$4,000 on account of the Wife’s costs of 9 July 2020 (‘the Wife’s 9 July costs’); and
(iv)such sum representing 42.5% of the school fees levied and invoiced by K School from 4 May 2022 to the date of settlement that the Wife has already paid (with such amounts and payments to be confirmed in writing by the school bursary).
SUPERANNUATION PAYMENT SPLIT
11.That the base amount of $16,093 is allocated, as required by s.90XT(1)(a) of the Family Law Act 1975, to the Wife out of the interest held by the Husband, Mr Pickering (member number …) in the Super Fund 2 (the Trustee for which is HH Company).
12.That whenever a splitable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf of the Husband from his interest in Super Fund 2, the Trustee, HH Company (Australia) Limited shall pay the Wife the entitlement calculated in accordance with Part 6 of the Family Law Act (Superannuation) Regulations 2001, and make a corresponding reduction in the entitlement of the Husband would have had but for these Orders.
13.That Orders 11-16 have effect from the operative time.
14.That the operative time is 4 business days after the date of service of sealed Orders upon the trustee.
15.That this Order binds the Trustee of Super Fund 2 (the Trustee for which HH Company).
16.There be liberty to apply to each party and HH Company (the Trustee of Super Fund 2) in relation to the implementation of the Orders effecting the superannuation interest.
MISCELLANEOUS
17.Within 14 days, the parties shall do all acts and things to transfer the Wife’s interest and shareholding (if any) in the Husband’s business interests and associated trusts (including but not limited to Q Pty Ltd and JJ Pty Ltd) to the Husband at his expense, and he shall indemnify her with respect to all liabilities of whatsoever nature and kind in relation to the business entities and associated trusts.
18.The Wife retain for her sole use and benefit, to the exclusion of the Husband, all other assets, resources and liabilities in her sole name including, but not limited to the following;
(a)Her shares;
(b)The Motor Vehicle 2;
(c)Chattels in her possession;
(d)Her cash at bank;
(e)Her superannuation entitlements; and
(f)Any other asset or liability in her possession or sole name.
19.The Husband retain for his sole use and benefit, to the exclusion of the Wife, all other assets, resources and liabilities in his sole name including, but not limited to the following:
(a)His cash at bank;
(b)His business;
(c)The Q Pty Ltd and JJ Pty Ltd businesses;
(d)The Pickering Family Trust and any other Trust entities;
(e)The balance of his superannuation entitlements;
(f)The Motor Vehicle 4;
(g)The Motor Vehicle 3;
(h)The Motor Vehicle 1;
(i)Chattels in his possession; and
(j)Any other asset or liability in his possession or sole name.
20.Save as otherwise provided for in these Orders and as a separate and ongoing obligation the Wife shall do all acts and things necessary and sign all such documents which may be required from time to time to pay and indemnify and keep the Husband indemnified in relation to all debts, liabilities, interests, costs and outgoings in relation to:
(a)Any and all creditors of the Wife, and/or her related entities;
(b)Any and all borrowings of the Wife, and/or her related entities;
(c)Any and all of the Wife’s taxation liabilities and/or those of her related entities in any jurisdiction and any interest, costs (including accounting costs) or penalties applicable thereto;
(d)Any and all taxation liabilities owing by the Husband personally on income notionally distributed to him by any of the Wife, and/or her related entities in any jurisdiction and any interest, costs or penalties applicable thereto;
(e)Any and all hire purchase and/or liabilities in respect of any assets owned by the Wife, and/or her related entities;
(f)Any and all other debt and/or liability of whatever nature in respect of the Wife, and/or her related entities;
(g)Any personal guarantees given by the Husband in respect of the debts of the Wife, and/or her related entities.
21.Save as otherwise provided for in these Orders and as a separate and ongoing obligation the Husband shall do all acts and things necessary and sign all such documents which may be required from time to time to pay and indemnify and keep the Wife indemnified in relation to all debts, liabilities, interests, costs and outgoings in relation to:
(a)Any and all creditors of the Husband, and/or his related entities;
(b)Any and all borrowings of the Husband, and/or his related entities;
(c)Any and all of the Husband’s taxation liabilities and/or those of his related entities in any jurisdiction and any interest, costs (including accounting costs) or penalties applicable thereto;
(d)Any and all taxation liabilities owing by the Wife personally on income notionally distributed to her by any of the Husband, and/or his related entities in any jurisdiction and any interest, costs or penalties applicable thereto;
(e)Any and all hire purchase and/or liabilities in respect of any assets owned by the Husband, and/or his related entities;
(f)Any and all other debt and/or liability of whatever nature in respect of the Husband, and/or his related entities;
(g)Any personal guarantees given by the Wife in respect of the debts of the Husband, and/or his related entities.
22.The parties be at liberty to provide a copy of these Orders to the K School.
23.Unless otherwise specified in these Orders and except for the purposes of enforcing compliance with the terms of these Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property (including choses-in-action) and financial resources in the possession of such party as at the date of these Orders;
(b)Each party hereby forgoes any claim they may have to any superannuation benefits or other employment related benefits belonging to or earned by the other;
(c)All insurance policies shall become the sole property of the owner named in the policy;
(d)Each party shall be solely liable for and indemnify the other against any liability encumbering an item of property to which that party is entitled pursuant to these Orders; and
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
24.All outstanding applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to section 81 of the Family Law Act 1975 (Cth) the parties intend that these Orders shall, as far as is reasonably practicable, finally determine the financial relationship between them and avoid further proceedings between them.
B.The parties have informed the Court, via their legal representatives, on 31 August 2023 that there has been approximately a further $30,000 in fees levied and invoiced by the K School from 4 May 2022 to date.
C.The parties agree that it is the intention of the parties, at paragraph 4(e) of these Orders, is that the Husband shall be responsible for 42.5% of the total fees levied and invoiced by the K School, from 4 May 2022 to the due date, notwithstanding that the Wife may have already paid a portion of those fees (noting that the Wife says she has paid approximately $16,000 toward the fees for that period).
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
On Monday, 28 August, I delivered reasons in this matter and made orders that adjourned the matter until today, essentially three days later. I provided draft orders in an appendix to those reasons. The purpose was to enable the parties to turn their minds to the concepts within the reasons and draft orders.
When the matter returned this morning, the parties had some minor suggested changes, which were essentially grammatical, to the draft orders but requested further time for some discussion of concepts within the orders. I permitted the parties to have further time.
Just before lunch today, the parties reached agreement that the form of the orders should be slightly different to the draft orders, but consistent with the scheme of those draft orders, and suggested some minor changes. The changes centre around the quantum of school fees, which is to be treated as a capital expenses of the parties, like a mortgage, to run up until what is known as the due date in the orders, essentially, towards the end of this calendar year. That increases the amount of the school fees that the parties pay for by capital in the same proportions that I have determined. I am satisfied that those suggested changes are just and equitable.
I note that these orders are not consent orders but orders of the Court.
I am grateful to Ms Pickering and Mr Pickering for their patience and their parenting of their children. I am grateful to Mr Carne and Mr Brooks for their assistance to the Court this morning.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 31 August 2023
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