REILLY & LLEWELLYN-REILLY

[2018] FamCA 1162

FAMILY COURT OF AUSTRALIA

REILLY & LLEWELLYN-REILLY [2018] FamCA 1162

FAMILY LAW – PROPERTY– Final orders by consent – Just and equitable – where the parties have sought that a property settlement be effected in terms of final consent orders presented to the Court – where the Court finds that it is just and equitable to make orders altering the parties’ interests in property and the proposed orders are appropriate, just and equitable, having regard to the facts of the matter – final orders made in terms of the final consent orders

Family Law Act 1975(Cth)

APPLICANT: Mr Reilly

RESPONDENT: Ms Llewellyn-Reilly

FILE NUMBER: MLC 7857 of 2015

DATE DELIVERED: 3 August 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 3 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Marshalls & Dent & Wilmoth

SOLICITOR FOR THE RESPONDENT: Clancy And Triado

Orders

BY CONSENT IT IS ORDERED THAT

Previous orders

1. All previous orders be discharged.

2. The Wife be restrained from leaving (or allowing any other person to leave) the children B, C and/or D unsupervised in the company of the Wife’s Father Mr Llewellyn at any time.

Payment

1. The Husband pay or cause to be paid (subject to Order 7(e)(i)) to:

   (a)the solicitors for the Wife within 60 days (the First Date), the sum of $100,000 (the First Payment); and

   (b)the Wife within 12 months or upon the settlement of any Default Sale in accordance with paragraph 6 hereof (whichever is the earliest) (the Second Date), the further sum of $100,000 (the Second Payment).

   (together, the Payments)

Default

1. Interest shall accrue on so much of:

   (a)     the First Payment as is outstanding from the First Date; and/or

   (b)the Second Payment as is outstanding from the Second Date;

   to the actual date of payment at the rate prescribed by Rule 17.03 of the Family Law Rules 2004.

2. The Wife may by notice in writing to the Husband require the sale (Default Sale) of the real property situate and known as H Street, Suburb J and being more particularly described in Certificate of Title Volume … Folio … (H Street) in accordance with paragraph 6 hereof if:

   (a)the whole of the First Payment has not been made within 90 days of the First Date; or

   (b)the whole of the Second Payment has not been made within six months of the Second Date.

3. Upon receiving notice in writing from the Wife in accordance with paragraph 5 hereof the Husband do all acts and things and sign all documents necessary to:

   (a)within 14 days, appoint a selling agent of his choice to sell H Street:

   (i)     by public auction (or such other mode of sale as recommended by the selling agent to the parties) to be held within 60 days of written notice by the Wife;

   (ii)    with a reserve price as recommended by the selling agent;

   (iii)   with a settlement period of not more than 120 days;

   (iv)   in the event H Street does not sell at public auction in accordance with this Order the property be listed for private sale thereafter, with a reserve price recommended by the selling agent to the parties, alternatively in the event of a dispute between the parties as to price, with a reserve price determined pursuant to a sworn valuation by K Valuers (or such other valuer as may be agreed in writing between the parties) to be instructed by the Husband within 7 days of the public auction, at his expense; and

   (v)    otherwise on terms and conditions to be agreed between the parties and in default of agreement as determined by the President for the time being of the Real Estate Institute of Victoria or his/her nominee (other than the selling agent) at their joint expense; and

   (b)upon settlement of the Default Sale, cause the proceeds to be applied:

   (i)     first, in payment of the costs and commissions of sale;

   (ii)    second, in discharge of the mortgage registered in favour of L Ltd with dealing number …V and further in discharge of any other encumbrance affecting the title to H Street; and

   (iii)   third, in payment to the Wife of so much of the Payments as are then outstanding together with interest in accordance with paragraph 4 hereof; and

   (iv)   fourth, the balance then remaining to the Husband.

4. Pending the Payments:

   (a)     the Husband have the sole right to occupy H Street;

   (b)the Husband pay or cause to be paid all payments pursuant to the mortgage encumbering H Street as and when they fall due;

   (c)the Husband be and is hereby restrained by injunction from creating any new encumbrance or increasing liability under any existing encumbrance to H Street, including but not limited to by drawing down on the loan secured by H Street, save for the purposes of making the Payments;

   (d)the Husband hold his interest in H Street on trust for the parties pursuant to these orders; and

   (e)the Wife be entitled to register a Caveat on title to H Street to better secure her interest in the Payments and shall:

   (i)     at her expense, withdraw her Caveat as may be required by the Husband to facilitate his making of the Payments; and

   (ii)    within three business days of receipt of the Payments withdraw any Caveat at her expense.

Personal property

1. The Husband retain to the exclusion of the Wife all of his right, title and interest in:

   (a)     H Street, subject to these orders;

   (b)    the Reilly Group;

   (c)     his bank accounts; and

   (d)his Super Fund 1 superannuation fund, subject to the superannuation splitting orders herein.

2. The Wife retain to the exclusion of the Husband all of her right, title and interest in:

   (a)     her part property settlement of $446,000;

   (b)    her bank accounts;

   (c)     her caravan;

   (d)    her European motor vehicle registration …; and

   (e)     her Super Fund 1 and Super Fund 2 funds.

3. The Husband be liable for and indemnify and forever hold indemnified the Wife against all payments and liability whether past, present or future in respect of:

   (a)his credit cards;

   (b)the European motor vehicle finance lease in the name of Reilly Consulting Pty Ltd, and the Husband shall forthwith pay and discharge the lease in full; and

   (c)any other liability in his personal name, including any personal taxation liabilities.

4. The Wife be liable for and indemnify and forever hold indemnified the Husband against all payments and liability whether past, present or future in respect of:

   (a)     her credit cards; and

   (b)any other liability in her personal name, including any personal taxation or Centrelink liabilities.

Companies, trust and indemnities

1. Within 14 days of written request by the Husband, the Wife do all acts and things and sign all documents necessary to, at the Husband’s expense:

   (a)     resign all and any officeholdings in:

   (i)     Reilly Holdings Pty Ltd;

   (ii)    Reilly Consulting Pty Ltd (trading as Reilly Group);

   (iii)   F Pty Ltd (trading as Company G); and

   (iv)   the Reilly Family Trust;

   (collectively, the “Reilly Group”)

   (b)    resign as the Second Appointor of the Reilly Family Trust;

   (c)     transfer to the Husband or at his direction any shareholding in:

   (i)     Reilly Holdings Pty Ltd;

   (ii)    Reilly Consulting Pty Ltd (trading as Reilly Group); and/or

   (iii)   F Pty Ltd Ltd (trading as Company G);

   (d)renounce and/or relinquish her rights and/or entitlements as a beneficiary of the Reilly Family Trust and cause her name to be deleted from the list of beneficiaries; and

   (e)waive and/or assign to the Husband or his nominee the benefit of any loan accounts in her name (jointly or otherwise).

2. Contemporaneously with Order 12, the Husband pay and indemnify the Wife against:

   (a)all liability of and in relation to the Reilly Group and/or the F Unit Trust and/or the Reilly Family Trust howsoever and whensoever arising including any personal liability guaranteed by the Wife and including any liability arising from the implementation of the provisions of these orders and including all interest, penalties, fines, levies, proceedings, costs, claims and demands in respect thereof;

   (b)all unpaid taxation assessed or hereinafter assessed against the Wife in respect of income paid or derived by her or deemed to have been paid or derived by her from the Reilly Group and/or the F Unit Trust and/or the Reilly Family Trust for each financial year up to and including the financial year in which the Wife has completed all transfers, resignations and consents pursuant to paragraph 12 hereof and including all interest, penalties, fines, levies, proceedings, costs, claims and demands in respect thereof; and

   (c)any claim by his wife Ms M howsoever or whensoever arising and including all interest, penalties, fines, levies, proceedings, costs, claims and demands in respect thereof.

3. Nothing in the preceding paragraph shall require the Husband to pay taxation assessed or hereinafter assessed against the Wife in respect of taxable income which is not of the kind described in sub-paragraph 13(b) hereof or any interest, penalties, fines, levies, proceedings, costs, claims and demands in respect thereof.

Superannuation splitting

1. For the purposes of paragraphs 16 to 21 hereof:

   (a)Base Amount means $70,000;

   (b)Fund means Super Fund 1;

   (c)Member Spouse means the Husband;

   (d)Non-Member Spouse means the Wife;

   (e)Operative Time means four days after service by the Wife and/or her solicitor of these orders on the Trustee; and

   (f)Trustee means the Trustee for the Fund.

2. In accordance with Section 90MT(4) of the Act, the Base Amount is allocated to the Non-Member Spouse out of the Member Spouse's interest in the Fund.

3. In accordance with Section 90MT(1)(a) of the Act:

   (a)the Non-Member Spouse (or the Non-Member Spouse's administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the Base Amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (b)the entitlement of the Member Spouse in the Fund (or the entitlement of such other person who becomes entitled to receive a payment out of the Member Spouse's superannuation interest) is correspondingly reduced by force of this order.

4. The Trustee shall do all such acts and things and sign all such documents as may be necessary to:

   (a)calculate, in accordance with the requirements of the Act the entitlement awarded to the Non-Member Spouse in the immediately preceding paragraph of this order; and

   (b)pay the entitlement whenever the trustee makes a splittable payment from the Member Spouse's interest in the Fund.

5. This order has effect from the Operative Time.

6. After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (the SIS Regulations), the Member Spouse shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Non-Member Spouse’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the Non-Member Spouse's choosing in accordance with the SIS Regulations.

7. The Court notes:

   (a)the value of the Non-Member Spouse interest is calculated in accordance with the SIS Regulations; and

   (b)any payments from the Member Spouse's superannuation interest in the Fund made after the trustee has created a new interest in the Non-Member Spouse's name in the Fund are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.

General

1. The Husband have leave to and do provide his wife Ms M with a copy of these orders.

2. The parties each do all acts and things and sign all documents as may be necessary from time to time to give effect to these orders.

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

   (a)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;

   (b)monies standing to the credit of the Wife or Husband in any bank account in his or her sole name are to become the property of the account holder named therein;

   (c)monies standing to the credit of the Wife and the Husband in any bank account in their joint names is to become the property of the Husband, and the Wife shall do all acts and things and sign all documents necessary to remove herself as a joint holder of any such account;

   (d)subject to the superannuation splitting orders herein, each party hereby:

   (i)     foregoes any claims they may have to any superannuation benefits belonging to or earned by the other; and

   (ii)    retains any superannuation benefits in their own name;

   (e)all insurance policies shall remain the sole property of the owner named on the policy;

   (f)each party shall be solely liable for and indemnify the other against any liability in their sole name, including any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

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

AND THE COURT NOTES THAT

A.In accordance with Section 81 of the Act, the parties intend that these orders shall, as far as practicable, finally determine all financial relationships between them and avoid the need for further proceedings between them.

B.The parties have contemporaneously entered into a “dollar for dollar” Financial Agreement pursuant to Section 90D of the Act in relation to spousal maintenance which shall commence operation on the pronouncement of orders substantially in the terms of this Minute of Consent Orders.

C.The Husband will pay periodic child support as assessed from time to time.  The Husband also intends to pay the following non-periodic child support amounts for C and D if, and only if, he can afford to do so, noting that he will use his best endeavours to maintain the children in private education, which is the preferred option of both parties if it is financially viable:

(i)compulsory school fees and levies for C at N School, Suburb P, or such other school as may be agreed from time to time;

(ii)compulsory school fees and levies for D at O School, Suburb P, or such other school as may be agreed from time to time;

(iii)orthodontic expenses for C, noting he is currently on a payment plan of $385 per week with 20 months remaining; and

(iv)private health insurance at the current level of cover (noting that the adult child B will also be maintained on the policy).

D.The Wife intends to pay all additional education expenses for C and D including school uniforms and text books.

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 Llewellyn & Llewellyn-Reilly 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 MELBOURNE

FILE NUMBER: MLC 7857 of 2015

Mr Reilly

Applicant

And

Ms Llewellyn-Reilly

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The husband and the wife in this matter commenced cohabitation in 1996 to 1997, they married in 1999, and separated in July 2013.  There are three children of the marriage, one of whom is over the age of 18, but still lives with the wife, and the other two children, who are aged respectively 16 and nine, who also live with the wife and spend time with the husband.  The parties have agreed upon a parenting plan for the two youngest children.

2. It is common ground that particularly the eldest child, and the second child, who is 16, have issues. One of the children has mental health issues, and the second child has been diagnosed as being on the autism spectrum. Each of these children requires additional care.

3. After the parties separated, they sold a property, and there have been payments made to the both of them.  Although there appears to be some dispute as to how they applied those funds, the parties have now agreed to settle the matter and they each want the Court to make orders in accordance with the minute of orders that have been provided to the Court. The parties want the Court to make these orders by consent, notwithstanding that not all the matters that were in dispute have been resolved.

4. I must be satisfied that it is just and equitable to make orders, that requirement is readily satisfied in a case such as this one.  These parties separated quite some time ago.  The husband has remarried, and the wife has re-partnered.  It is clearly appropriate that they be able to move on and that they no longer have a financial relationship moving forward.

5. I also have to be satisfied that it is proper for the Court to make the orders they seek.  I am satisfied that the orders they propose are in all of the circumstances of this case just and equitable. There are many cases in which parties resolve matters without agreement on every issue and there are many factors that come to bear in decisions such as this one.  In my view, the parties have sensibly taken into account both the financial and emotional cost of litigation. I am certainly satisfied I should make the orders they ask the Court to make.

6. I am also satisfied, as those orders include a superannuation split, that the trustee of the superannuation fund has been afforded procedural fairness.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 3 August 2018.

Associate: 

Date:  19 February 2020