Porter and Porter and Ors (No 2)
[2018] FamCA 497
•28 June 2018
FAMILY COURT OF AUSTRALIA
| PORTER & PORTER & ORS (NO 2) | [2018] FamCA 497 |
| FAMILY LAW – PROPERTY – Where a final property settlement order was made by consent – Where that order, amongst other things, required the husband to borrow funds to purchase a residential home for the wife’s exclusive occupation and for the husband to make the mortgage repayments for a period of 10 years - Where the husband has since become bankrupt – Where the husband’s trustee in bankruptcy is contesting the validity of the property settlement order under s 79A(1)(a) Family Law Act or in the alternative relying upon the court’s implied jurisdiction – Where the trustee asserts that the property settlement order was made without the power to do so because it impermissibly brought property into existence – Where new property is not created as the husband’s net assets at the time of the orders exceeded the amount borrowed – Where the challenge to the court’s power to make the property settlement order fails and that part of the application by the husband’s trustee in bankruptcy is dismissed |
| Family Law Act 1975 (Cth) Family Law Rules |
| Hickey and Hickey and Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 In the Marriage of Kokl (1981) 7 Fam LR 591 In theMarriage of Rhode (1984) 10 FamLR 56, FLC 91-592 Mullane v Mullane (1983) 158 CLR 436 Tallant & Tallant (2017) FLC 93-789 The Queen v Ross-Jones; Ex parte Green (1984) 156 CLR 185 Walters & Walters (1986) FLC 91-733 |
| APPLICANT: | Ms Porter |
| 1st RESPONDENT: | Mr Porter |
| 2nd RESPONDENTS: | P Pty Ltd |
| 3rd RESPONDENTS: | Q Pty Ltd |
| 4th RESPONDENTS: | R Pty Ltd |
| 5th RESPONDENT: | Mr Dunst & Mr Simons as Trustees in Bankrupt Estate of Mr Porter |
| 6th RESPONDENTS: | Ms O |
| 7th RESPONDENTS: | S Pty Ltd |
| FILE NUMBER: | SYC | 4014 | of | 2012 |
| DATE DELIVERED: | 28 June 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 22 June 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levet |
| SOLICITOR FOR THE APPLICANT: | Quinn Legal |
| SOLICITOR FOR THE RESPONDENT: | Respondent Husband in person |
| COUNSEL FOR 2ND – 4TH RESPONDENTS & 6TH – 7TH RESPONDENTS: | Mr McDonald |
| SOLICITOR FOR 2ND – 4TH RESPONDENTS & 6TH – 7TH RESPONDENTS: | Litigants in person |
| SOLICITOR FOR 5TH RESPONDENT: | Litigant in person |
Orders
The application by the 5th respondent to set aside the property settlement order made 20 June 2014, pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) or in the alternative, the court’s implied jurisdiction, be dismissed.
Pursuant to rule 1.12 of the Family Law Rules (“the rules”), the time for filing any appeal against order 1, as set by rule 22.03 of the rules, be extended to 28 days after any determination or discontinuance of the 5th respondent’s application to set aside the property settlement order made 20 June 2014 pursuant to s 79A(1)(b) of the Act.
This matter is otherwise adjourned for a procedural mention on 6 September 2018.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Porter & Porter & Ors (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4014 of 2012
| Ms Porter |
Applicant
And
| Mr Porter |
1st Respondent
And
| P Pty Ltd |
2nd Respondent
And
| Q Pty Ltd |
3rd Respondent
And
| R Pty Ltd |
4th Respondent
And
| Mr Dunst & Mr Simons as Trustees in Bankrupt Estate of Mr Porter |
5th Respondent
And
| Ms O |
6th Respondent
And
| S Pty Ltd |
7th Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Consent orders were made by a Registrar on 20 June 2014 at the invitation of the husband and the wife. Those orders contained a property order (“the 2014 property settlement order”), a spousal maintenance order and parenting orders. There was also a notation in that document in relation to the parties entering into a child support agreement.
The 2014 property settlement order contained 24 paragraphs. The full text is set out in Schedule 1 and the substance of those paragraphs is set out below. The husband was a professional on a high income. The essential feature of the property settlement order was a requirement that the husband borrow money to acquire a new residence for the wife and the children.
The court also made an order for the Registrar to sign documents pursuant to s 106A in the event that either party refused or neglected to execute them.
The 5th respondent, the husband’s trustee in bankruptcy (“the trustee”) argues that the 2014 property settlement order created new property and has been made without power. The trustee submits that the order should be set aside pursuant to the provisions of s 79A(1)(a) of the Act because there has been a miscarriage of justice by reason of “…any other circumstance”, that circumstance being, the making of an order without power to do so.
In the alternative, the trustee asserts that the court should exercise its implied jurisdiction to set aside the 2014 property settlement order because it had been made without power.
IMPLIED JURISDICTION and SECTION 79A(1)(a)
In The Queen v Ross-Jones; Ex parte Green (1984) 156 CLR 185, Gibbs CJ, Mason, Brennan and Dean JJ, in separate judgments and in different words indicated that this court had the ability to decide whether or not an application for an order was within the limits of the court’s statutory jurisdiction and in answering that question to determine any disputed questions of fact (Gibbs CJ at 193 - 195, Mason J at 203, Brennan J at 216 and Dean J at 222).
Normally an implied power is a power that is exercised to enable the court to exercise its statutory jurisdiction in an efficient and just manner. If s 79A(1)(a) of the Act (“a miscarriage of justice by reasons of …. any other circumstance”) provides the remedy sought then there is no need to invoke the implied power.
In this case little turns upon the basis upon which the trustee proceeds. Both the primary application under s 79A(1)(a) of the Act and the alternate application based upon implied jurisdiction rely upon a similar interpretation of the effect of the 2014 property settlement order and an inquiry as to the financial circumstances of the parties at the time the order was made.
SECTION 79A(1)(a) – ANY OTHER CIRCUMSTANCE
The words “any other circumstance” are not to be read ejusdem generis with the other words in s 79A(1)(a) which are “fraud, duress, suppression of evidence (including failure to disclose relevant information) and giving of false evidence” (see In the Marriage of Kokl (1981) 7 Fam LR 591; In theMarriage of Rhode (1984) 10 FamLR 56, FLC 91-592.
THERE IS ONLY ONE PROPERTY ORDER
Often, as in this case, individual paragraphs in a property settlement order are themselves referred to as “orders”. In Hickey and Hickey and Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 the Full Court at [36] – [49] discussed the characteristics of a property settlement order. Importantly, the Full Court emphasises that:
47…. an order for property settlement made pursuant to s 79 cannot legally constitute “orders” in the plural sense, but rather is a single order made up of various paragraphs or clauses.
Whilst particular paragraphs might be “essentially ineffectual” because they leave property or assets in the hands of the spouse in whose name or possession that property or assets already is, those type of “catch all” paragraphs are to be seen as paragraphs or clauses in a single s 79 order.
Whilst the consent orders, in this case, contain the heading “property orders”, for reasons explained in Hickey the court has made a single property settlement order. The parties accepted that this was so.
THE TERMS OF THE 2014 PROPERTY SETTLEMENT ORDER
The relevant features of the property settlement order were as follows:
13.1.The husband was to pay to the wife the sum of $2 million towards the purchase of a new residence which the wife would occupy and for the title of the property to be registered to 75 per cent to the wife and 25 per cent to the husband (this paragraph in the order, in effect, returns to the husband $500,000 of the $2 million payment to the wife by granting to him 25 per cent equity in the new residence);
13.2.The husband was to pay the stamp duty on the purchase of the new residence;
13.3.The husband was to raise the $2 million by way of borrowed funds to be repaid within 10 years;
13.4.The husband was to meet the repayments of the borrowed funds;
13.5.The husband was to be responsible for 25 per cent of the outgoings on the new residence;
13.6.The wife had a right to buy the husband’s interest after a ten year period;
13.7.The wife had exclusive occupancy for a ten year period;
13.8.If either party wished to sell their interest, then the other party had a right of first refusal to purchase that interest. The husband could not force a sale until after the expiration of ten years;
13.9.The husband was to meet the costs of a car for the wife; was to pay lease payments on the car when they fell due and at the conclusion of the lease transfer the car to the wife (and in the meantime pay insurance payments, costs of servicing, and maintenance costs for the car). For the sake of completeness, I note that on 3 March 2014 order 6 (the order to do with the wife’s motor vehicle) was amended by consent pursuant to s 79A(1A) of the Act;
13.10.There was agreement in relation to the division of household items and the provision to the husband of a copy of family photographs;
13.11.Otherwise, the husband and wife were to each retain the benefit of assets that they had in their possession (including particular orders in relation to particular artwork);
13.12.There was an order that the husband maintain a life insurance policy over his life with a death benefit of $3 million payable to the wife on his death;
13.13.The husband was to retain shares in nine companies and control of four trusts and two business names. The wife was to resign from any office held in those companies;
13.14.The husband was to retain all of his superannuation entitlements and all bank accounts in his name;
13.15.The husband was to indemnify the wife in relation to any debts arising out of the wife’s involvement with any of the corporate entities;
13.16.The husband was to secure on behalf of the wife a release from all guarantees and liabilities in respect of a particular trust;
13.17.The husband was to indemnify the wife in relation to liabilities to banks and providers of finance;
13.18.There was to be a splitting order whereby the wife transferred all her interest in a self-managed superannuation fund to the husband; and
13.19.The husband was to pay to the wife sums totalling $65,000 in five tranches over a 12 month period.
At the same time the 2014 property settlement order was made, the court also, by consent, made a spousal maintenance order requiring the husband to pay to the wife $1,000 per week until certain terminating events and for the husband to pay the wife $2,000 per week until such time as the new property was acquired for her new accommodation.
The 2014 orders also note that the parties were simultaneously entering into a binding child support agreement whereby the husband paid the wife $2,100 per week for child support together with the husband funding private school fees and associated costs of the children’s schooling and 100 per cent of the children’s medical and dental treatment including private health insurance.
IS THE 2014 PROPERTY SETTLEMENT ORDER MADE WITHOUT POWER?
The principle argument of the trustee was that the 2014 property settlement order impermissibly deals with property that the order itself brings into existence.
Counsel for the trustee referred to Walters & Walters (1986) FLC 91-733. This is a case which was decided before the introduction of Part VIIIB of the Act which now facilitates the splitting of superannuation. The parties’ most significant asset was the husband’s interest in his superannuation fund. At that time the court considered that interest to be a financial resource rather than property. The wife sought an order requiring the husband to pay upon the expected date of his retirement, an amount equivalent to 30 per cent of his accumulated superannuation benefit at the date of the hearing. Lindenmayer J at page 75,344 said:
In my opinion [s 79(1)] does not give the court the power to order a settlement of property which does not exist and could only be brought into existence by the exercise of an alleged borrowing capacity.
Counsel for the trustee also relied on Tallant & Tallant [2015] FamCA 864. In that case an order was made requiring a company in which neither the wife nor the husband (who was bankrupt) had a beneficial interest, to transfer a property to the wife and for the husband to make ongoing repayments on the mortgage on that property. The Full Court found that this was not a valid property settlement order and said at [26]:
There is no doubt that orders in relation to property, are limited to property in existence at the time the order is made and must be “property of the parties” (per s 79(1)). Property is defined in s 4(1) of the Act:
(a) in relation to the parties to a marriage or either of them — means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion; ….
It can be seen in both of these cases that the orders were made in circumstances where the court found no property of the parties was in existence.
THE CONTEXT IN WHICH THE PROPERTY SETTLEMENT ORDER WAS MADE
The property settlement order, in this case, was made by the Registrar in the course of defended proceedings between the husband and the wife. The wife had filed an Initiating Application on 9 August 2013 seeking a final property order which included:
20.1.A splitting order in her favour of 80 per cent of the husband’s entitlement in his superannuation fund;
20.2.A payment within 60 days by the husband to her of a sum of $1,500,000;
20.3.For both parties to otherwise retain property that was in their possession, including leaving interests in corporations and trusts with the husband; and
20.4.Default provisions for the liquidation of assets in the event the husband did not make the payment that had been ordered.
The husband filed a Response on 17 September 2013. In that Response he sought a property settlement order which had the following features:
21.1.Superannuation to be divided 65 per cent to the wife and 35 per cent to the husband;
21.2.The parties do what was necessary to sell a number of properties that were in various companies controlled by the husband and that the wife receive 65 per cent of the net proceeds of the sale of those properties;
21.3.That the husband retain his right and interest in seven companies, five trusts, two business names and his bank accounts and that the wife resign as an office bearer of those companies and assign any interest she has as a beneficiary in the trusts to the husband;
21.4.The husband indemnify the wife in relation to liabilities arising out of the corporate structure, liabilities to banks and other financial institutions;
21.5.Otherwise, the parties were to retain items which were in their name; and
21.6.The husband was to transfer a motor vehicle to the wife and continue payments on that motor vehicle until the lease had been paid.
Both parties filed financial statements.
On 12 May 2014, the husband filed a more detailed affidavit which contained greater information in relation to his then current financial circumstances. That affidavit was filed one month before the orders were made.
At [7.1] to [7.3] of the husband’s affidavit filed 12 May 2014, the husband summarises the position in relation to his assets and liabilities. It was acknowledged that there was a typographical error in [7.2] (the liability to the NAB was $1 million more than stated). With that correction, the husband asserted in that affidavit that the net assets which he held personally or through companies and trusts were in the approximate sum of $2 million.
DID THE HUSBAND HAVE THE CAPACITY TO BORROW $2 MILLION?
Counsel for the trustee initially sought to rely upon the information in the husband’s financial statement and his affidavit to assert that at the time the orders were made the husband did not have the income to make the borrowing required by the orders. The husband stated in his financial statement that his gross income was $21,223 per week and in his affidavit, that his gross income had reduced to $17,988 per week.
There are two fundamental difficulties with the submission that the husband lacked borrowing capacity:
26.1.The husband, who was legally represented at the time, by signing the consent orders, represented to the court that he did have such a borrowing capacity at the time; and
26.2.It is an agreed fact that a borrowing in excess of the amount required under the orders was achieved by the husband without any assistance from any external party (although I infer that the arrangement with the financial institution may have involved some of the corporate entities and trusts which the husband wholly owned and controlled).
JUSTICE LOUGHNAN’S JUDGMENT OF 10 AUGUST 2017
Counsel for the trustee seeks to rely upon two paragraphs of an ex tempore judgment of Justice Loughnan dated 10 August 2017 in interim proceedings in this matter. In that ex tempore judgment, his Honour comments that the 2014 orders “may be made without jurisdiction. The Court’s property settlement power is to change interests in property. That requires the existence of those interests.”
However, it is otherwise clear from his Honour’s reasons that as at 22 June 2017 the husband had asserted that he then had a shortfall of assets over debts. His Honour does not record in his judgment that he was informed as to what the position may have been in June 2014 which, as set out above, was that there was a surplus of $2 million.
SECTION 81 OF THE ACT
Counsel for the trustee also relied upon s 81 of the Act and asserted the terms of the 2014 property settlement order did not comply with that section. Section 81 is in the following terms:
Duty of court to end financial relations
In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
Whilst the provisions of s 81 are normally honoured by a court making an order which limits as much as possible the future financial relationship between the two parties, there are circumstances, and this case is one, where the parties agree on a continuing financial relationship within certain parameters. That does not mean that the order is not final. Whether or not the completion of obligations under an order takes three months, six months, one year or ten years, or in the case of the husband’s insurance policy, until he died, does not affect the finality of the order or mean that the duty of the court to finally determine the financial relationships between the parties has not been fulfilled. It should also be noted that s 81 includes the words “as far as practicable” and that it is important to remember that in this case, the court was not imposing a set of orders upon the parties, rather, they were inviting the court to make these final orders.
IS NEW PROPERTY CREATED IN THIS CASE?
A very common order to be made by way of alteration of property is for one spouse to retain a large proportion of the net assets and for that spouse to raise a borrowing against those assets for payment to the other spouse so as to create an appropriate and just and equitable alteration of their property interests. It might be argued that an order which requires a party to borrow a sum of money to be paid to the other spouse is an order which creates “new property” being that sum of money. But, in reality, no new property is created. The net assets remain the same. The net value of the assets retained by the spouse who borrows the money is less because their value is reduced by the amount of that borrowing.
Given in this case the husband had $2 million in net assets, the provision to in effect pay to the wife $1.5 million on the basis the husband kept all the other substantial assets is not a creation of new property. The fact that that payment was to be made over a ten year period is neither here nor there. Accordingly, it cannot be said that funds which were not in existence prior to the order but came into existence as a result of a borrowing, created new property in this case.
IS THE ORDER THAT PLACES CONDITIONS UPON THE MONEY THAT THE HUSBAND IS TO PAY OUTSIDE THE REMIT OF S 79(1) OF THE ACT?
As indicated, the property settlement order placed conditions upon how the money which the husband was required to pay the wife was to be used. This included that:
33.1.A residential premises be purchased;
33.2.The husband make regular repayments on the borrowing;
33.3.The husband make payment on a portion of the outgoings;
33.4.The wife have a right to purchase the property within a ten year period;
33.5.The borrowing to be limited to a period of ten years; and
33.6.The parties have rights of first refusal in respect of the purchase of the property if one party wishes to sell (the husband could not force a sale within the period of ten years).
The trustee suggested that these conditions, associated with the assertion of the creation of “new property”, were outside the power under s 79(1) of the Act.
It is trite that s 79 is the specific head of power relevant to the making of a property settlement order.
Section 80 of the Act, however, whilst not an independent head of power, provides general powers to the court when exercising powers under Part VIII of the Act. It is in the following terms:
(1) The court, in exercising its powers under this Part, may do any or all of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic sum;
….
(h) make a permanent order…. or an order for a fixed term or for a life or during joint lives ….;
(i) impose terms and conditions;
(j) make an order by consent;
(k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; ….
These general powers are amply sufficient to impose all the conditions in the 2014 property settlement order.
THE PARAGRAPH GRANTING THE WIFE EXCLUSIVE OCCUPATION
Counsel for the trustee argued that the clause in the property settlement order that provided a ten year occupancy period for the wife was not an order that could be part of the property settlement order.
Reliance was placed on the High Court authority of Mullane v Mullane (1983) 158 CLR 436.
The order under consideration in Mullane was a standalone order made in August 1967 giving the wife exclusive occupation of a property until such a time as all three children of the marriage became self-supporting or the wife remarried, whatever first occurred. There was a further order that the husband pay regular instalments of the mortgage rates and insurance of the property.
The question for the High Court in Mullane was whether or not the order for exclusive occupation, in that case, was a property settlement order under s 79. The High Court found it was not, saying at 445:
In our opinion, therefore, s 79 on its proper construction refers only to orders which work an alteration of the legal or equitable interests in the property of the parties or either of them. An interest in property is a right of a proprietary nature, not a mere personal right: Stow v Mineral Holdings (Aust.) Pty Ltd [1979] HCA 30; (1977) 51 ALJR 672 at p 679; Ex parte Meneling Station Pty Ltd. It does not exclude every interest which is not assignable or transferable (cf. per Mason J. in Meneling Station [at 343]). Thus an order under s 79 may give rise to an interest in property which is defeasible on assignment or transfer to a third party, or on the occurrence of some other event, or which the holder is enjoined from assigning or transferring.
It follows, then, that s 79 does not authorize a mere modification of a liberty to enjoy property. An order which merely excludes one spouse from the enjoyment of property, albeit for many years, in order to permit its better enjoyment by the other does not alter an interest in that property, though a spouse acquiring an interest in property under a s 79 order may be entitled, in virtue of that interest, to exclude the other from its enjoyment. Where the section refers to a settlement of property, it should be understood as using that expression in a sense which is closely related to the meaning which the expression bears in the law of real and personal property.
(Emphasis added)
The crucial difference, in this case, is that the occupancy paragraph is not a standalone paragraph. It is one of the paragraphs in the one property settlement order.
Neither party either in 2014 or now attempted to place any value on the wife’s right of occupancy of the husband’s interest in this property.
Given various provisions in s 80(1)(h), (i), (j) and (k) of the Act, the paragraph which provides for exclusive occupancy to the wife is made within power and cannot be seen as severable from the property settlement order.
CONCLUSION
The 2014 orders have not been made without power. The trustee has not established “a miscarriage of justice by reason of …. any other circumstance” for the purpose of s 79A(1)(a) nor is there any basis upon which the court would exercise its implied powers to set aside the 2014 orders because they had been made without power.
The trustee has extant an application to set aside the 2014 property settlement order on the basis that “in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out” (in whole or in part; s 79A(1)(b) of the Act).
The parties have now asked for time to explore a possible overall settlement and, accordingly, the matter is adjourned for mention to 6 September 2018.
Given the matter is to be adjourned, it is appropriate, pursuant to rule 1.12 Family Law Rules (“the rules”), for the time set by rule 22.03 to be extended to 28 days after any determination or discontinuance of the 5th respondent’s application to set aside the property settlement order made 20 June 2014 pursuant to s 79A(1)(b) of the Act.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 28 June 2018.
Associate:
Date: 28 June 2018
SCHEDULE 1 – the full text of the 2014 property settlement order
Property orders
That as soon as the wife has located suitable residential premises, the husband shall pay to the wife an amount of $2,000,000 towards the purchase of the residential premises such premises to be owned and occupied by the wife client [sic] as her “residential premises” and such property shall be owned by the parties as to the husband 25% as to the wife 75%.
That in relation to the preceding order the following provisions shall apply:
2.1The husband shall meet the stamp duty on the purchase of the residential premises
2.2The monies shall be provided by the husband by way of borrowed funds secured against the residential premises
2.3The husband shall cause the borrowed funds to be repaid within 10 years of the date of these orders
2.4The repayment on the borrowed funds shall be met by the husband and he shall indemnify and keep indemnify [sic] the wife as to same
2.5That except as to land tax, the wife shall be responsible for 75% of the outgoings of the property and the husband shall be responsible for 25% of the outgoings
2.6That the husband shall be responsible for the land tax and any capital gains tax in respect of the residential premises
That at the expiration of 10 years or such earlier or later time as may be agreed, the wife shall be able to purchase the husband’s interest in the residential premises for such sum as is agreed or in default of agreement calculated by an agreed valuer such valuer to be nominated by the wife.
the husband shall not be permitted to compel a sale of the residential premises earlier than 10 years from the date of these orders unless as agreed.
In the event that either the husband or wife wish to sell their interest in the residential premises and the other does not wish to buy, then they shall both do all act things [sic] and sign all documents necessary to list the said residential premises for sale and the net proceeds shall be divided
a.As to the wife 75%
b.As to the husband 25% provided that the husband shall meet from his share any remaining mortgage on the said property
The husband shall meet the costs of a [motor vehicle] for the wife and shall pay the lease payment as and when they fall due and at the expiration of the lease the husband shall transfer to the wife all right title and interest in the vehicle and the wife shall then be liable for the remaining costs of the vehicle.
Until provision of that vehicle the husband will continue to pay all repayments for finance; insurance payments; costs of servicing; costs of maintenance and costs of repairs for the existing [motor vehicle].
The husband and wife shall divide the storage household items at the [Suburb W] home by agreement.
The husband shall facilitate the wife obtaining a copy of the family photos.
That except as provided for in these orders, that the wife shall retain for her sole benefit all assets chattels furniture in her possession and/or custody.
That except as provided for in these orders, that the husband shall retain for his sole benefit all chattels furniture in his possession and/or custody.
That the husband retain the art work in his possession and the wife to retain the artwork in her possession save that the husband shall make available to the wife for her benefit the [Suburb W] house model, … and shall make these available to the wife within 90 days of the date of these orders.
That the husband shall ensure he maintains a life insurance policy over his life with a death benefit of $3 million payable to the wife on his death and the wife shall be the beneficiary of the policy to $3 million.
The husband shall retain all his shares in [X Pty Ltd; Y Pty Ltd; Z Pty Ltd; Q Pty Limited; AA Pty Ltd; BB Pty Limited; BB 2 Pty Limited; N Pty Ltd; and CC Pty Ltd]; and his beneficial interests in the [DD Trust; the EE Trust; the FF Trust the GG Trust; the HH Trust; II Pty Ltd and JJ Pty Ltd].
The husband shall retain all his superannuation entitlements in the KK Superannuation Fund; all bank accounts in his name; and all furniture, furnishings and effects in his possession.
The wife shall within 7 days resign any office held by her in the entities referred to in the preceding orders and transfer and assign to the husband any beneficial interest or shares held by the wife and execute a Deed of Relinquishment as a beneficiary in [X Pty Ltd; Y Pty Ltd; Z Pty Ltd; Q Pty Limited; BB Pty Limited; BB 2 Pty Limited; AA Pty Ltd; DD Trust; EE Trust; FF Trust; GG Trust and HH Trust and Q Superannuation Trust].
That the husband will indemnify and keep indemnified the wife for all and any debts and liabilities of or arising out of the wife’s involvement with any of the corporate entities referred to in the preceding orders and shall indemnify the wife for all and any debts arising from any income attributed to her by any of the entities.
That simultaneously with the purchase of the residential premises as provided for in these orders, the husband shall secure on behalf of the wife a release of all guarantees and liabilities in respect of the [Q Trust] and any other entity referred to in these orders.
That the husband shall retain liability for and indemnify the wife in respect of all liability to Commonwealth Banking Corporation and St George Bank; all credit cards in the husband’s name; and all liabilities to [LL Ltd] and [MM Ltd].
Superannuation splitting Orders
That these orders have effect from the operative time.
That in accordance with Section 90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable to the wife [Ms Porter] interest in the [BB Pty Ltd atf Q Super Fund] hereinafter referred to as the fund, the husband [Mr Porter] is entitled to be paid 100% of the splittable payment received by the wife and that there is a corresponding reduction in the entitlement that the wife would have had but for these orders.
That having been accorded procedural fairness in relation to the making of these orders, these orders bind the trustee of the fund.
The operative time for these orders is four business days after receiving a sealed copy of the court orders.
That the husband shall pay to the wife the follow [sic]
a.$10,000 forthwith
b.$10,000 within 3 months of the date of these orders
c.$110,000 within 12 months of the date of these orders
d.The sum of $15,000 in respect of the wife’s legals [sic] costs to [NN Lawyer] within 60 days of the date of these orders
e.The sum of up to $20,000 in respect of costs to [OO Lawyers]
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