Richards and Richards

[2013] FamCA 1083

FAMILY COURT OF AUSTRALIA

RICHARDS & RICHARDS [2013] FamCA 1083

FAMILY LAW – PROPERTY – Consent Orders – where the Court is satisfied the Orders are just and equitable in the circumstances

Family Law Act 1975 (Cth)

APPLICANT: Ms Richards

RESPONDENT: Mr Richards

FILE NUMBER: MLC 3474 of 2012

DATE DELIVERED: 13 December 2013

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 13 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Neal

SOLICITOR FOR THE APPLICANT: Marshalls & Dent Lawyers

COUNSEL FOR THE RESPONDENT: Mr Nedovic

SOLICITOR FOR THE RESPONDENT: Nedovic and Co

Orders

Accordingly, I make the following orders:

1. Orders be made in accordance with the minute of consent order signed by the parties, dated today’s date and initialled by me, an engrossed copy attached hereto and marked Exhibit “1”.

2. The hearing dates of 16 and 17 January 2014 be vacated.

3. All extant applications are otherwise dismissed.

   IT IS DIRECTED

4. The solicitor for the applicant wife forward to my associate by 12.00 noon today an electronic form of the minute of order in word format.

5. A copy of the reasons for these orders be taken out and placed on the Court file.

   IT IS CERTIFIED

6. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Exhibit “1”

BY CONSENT IT IS ORDERED

1. That Richards Pty Ltd (“the Company”) in its capacity as trustee of the Richards Family Trust (“the Family Trust”), the Richards Land Trust (“the Land Trust”) and the Richards Superannuation Fund (“the Super Fund”) be joined as the Second Respondent to these proceedings.

1. That on or before 19 December 2013 (“the settlement date”) and at the expense of the wife:

2.1      The Company be removed as trustee of the Family Trust.

2.2      The wife appoint a new trustee of the Family Trust.

2.3      The husband be removed as an Appointor of the Family Trust.

2.4      The wife resign any offices she holds in the Company.

2.5      The husband transfer to the wife or to the Second Respondent or otherwise at the wife’s sole discretion all his right title and interest in the property at B Street, C Town, South Australia (“the C Town Property”).

2.6      The husband relinquish any right or entitlement he may have in the Family Trust.

2.7      The husband transfer to the wife or her nominee the benefit of any loan account standing to the credit of the husband in the Family Trust.

1. That contemporaneously with Order 2 hereof the D Pty Ltd account number … at the Australia and New Zealand Banking Group Limited, K Town branch with a balance of $109,161.58, be paid to the husband.  

1. That in the event that settlement of the sale of the property at E Street, Suburb F (“the Suburb F property”) takes place on or before 18 December 2013 (“the Suburb F settlement”), the husband be entitled to solely retain the net proceeds of sale estimated to be $160,487.44 (“the sale proceeds”).

1. That in the event that the Suburb F settlement does not take place on or before 18 December 2013, the wife do all such acts and things and sign all such documents at the expense of the husband as may be required to transfer to the husband or his nominee all her right title and interest in the Suburb F property.

1. That on or before the settlement date the wife pay to the husband such sum as is required to achieve an equal division of the following:-

1.1   The balance of the D Pty Ltd account as set out in Order 3;

1.2       The sale proceeds as set out in Order 4 or in the event of a transfer of the Suburb F property to the husband as set out  in Order 5 a sum agreed to be $160,487.44; and

1.3   The C Town property valued at $1,350,000

such sum currently anticipated to be $540,175.43 (“the payment”) subject to the further adjustments set out in Order 7.

1. That the payment be reduced by $2,288.25 such sum being the net amount of:

7.1       a payment by the husband to the wife of $10,422.50 being reimbursement to the wife of one half of the purchase of a motor vehicle together with insurance and registration for G at a total price of $20,845 that is agreed to be paid for by the husband but that has been already funded from the D Pty Ltd account referred to in Order 3 hereof less

7.2     a payment by the wife to the husband of $8,000 (representing the         compromised amount paid by the wife in full and final satisfaction of all and any debts owed by the wife’s parents to the parties) less

7.3      $134.26 being one half of the adjusted rates for the Suburb F property for the period 1 July 2013 to 31 December 2013;

such sums to be set off one against the other. 

8.        That the wife be solely liable for all outgoings in respect of the C Town property including municipal rates, electricity, insurance and land tax (and including any arrears of such outgoings) together with all management and maintenance fees payable in respect of the C Town property (including any arrears of such management and maintenance fees).

1. That on or before the settlement date the wife do all such acts and things and sign all such documents, at the expense of the husband, as may be necessary to:

   9.1      Transfer to the husband or his nominee, the benefit of any loan account standing to the credit of the wife in the accounts of the Company.

   9.2      Transfer to the husband or his nominee, any shares, benefits or entitlement held by the wife in the Company.

   9.3      Resign any offices she holds in the Company.

   9.4      Relinquish any right or entitlement which she may have in the Land Trust.

   9.5      Transfer to the husband or his nominee the benefit of any loan account standing to the credit of the wife in the Land Trust.

   9.6      Remove the wife as an Appointor of the Land Trust.

2. That the husband be solely liable for and indemnify the wife with respect to all past, present and future liabilities associated with the Company and the Land Trust including any loan account or taxation liability.

1. That the wife be solely liable for and indemnify the husband with respect to all past, present and future liabilities associated with the Family Trust including any loan account or taxation liability.

1. That the husband shall be entitled to retain for his sole use and benefit absolutely to the exclusion of the wife all of his existing shares, benefits and entitlements in the said Company and the Land Trust.

1. That on the settlement date the husband:

(a)        pay to the Australian Taxation Office the sum of $1,752.06; and

(b)        pay to the Richards Superannuation Fund the sum of  $2,147.44.

1. That paragraphs 15 to 19 hereof are binding upon the Trustee of the Richards Superannuation Fund ("the Fund").

1. That the parties and the Trustee forthwith do all such acts and things and sign all such documents as may be required to give effect to paragraphs 16 to 19 of these Orders.

1. That pursuant to Section 90MT (1)(a) of the Act:

16.2    the husband is entitled to a base amount of $10,535 (“the husband’s      superannuation split”) out of the wife’s interest in the Fund; and

16.2    there be a corresponding reduction in the entitlement that the wife would have had in the Fund but for this Order.

1. That the operative time for the purposes of these Orders is the settlement date.

1. That paragraph 16 hereof has effect from the operative time.

1. That forthwith upon the husband’s superannuation split being effected, the Trustee and the parties do all such acts and things and sign all such documents as may be required to roll over the wife’s member entitlement in the Fund being then a total entitlement of $133,409.50 (“the Rollover”) into such compliant superannuation fund as is nominated by the wife and contemporaneously with the Rollover:-

19.1    the wife do all such acts and things and sign all such documents as may be required to retire as a member of the Fund; and

19.2    after the husband’s superannuation split and the roll over, the husband retain his interest in the fund to the exclusion of the wife and the husband be liable for and indemnify the wife  against all and any liabilities of whatsoever nature and kind of or in relation to the fund.

1. That by way of adult child maintenance to enable the child of the marriage G born … 1995 (“G”) to complete his education:

20.1    The wife pay the sum of $126,000.00 to the institution where G intends to undertake his cadetship.

20.2    In addition to the payment by the husband to the wife referred to in Order 7.1 of $20,845 for the purchase of a motor vehicle together with registration and insurance the husband further pay registration, insurance and maintenance on that motor vehicle until G completes his cadetship.

20.3    Private health insurance premiums at the current level or higher rate of the existing private health insurance policy of the children of the marriage for G until he completes his first course of tertiary education.

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

21.1    Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action and superannuation benefits) in the ownership, control or possession of such party as at the date of this order.  The furniture, chattels and personal effects at the C Town property are deemed to be in the possession of the wife;

21.2    Any monies standing to the credit of the parties in any joint bank account are to become the property of the husband and the parties forthwith do all such acts and things and sign all such documents as may be necessary to close any such joint account.

21.3    All insurance policies owned by the parties shall remain the sole property of the owner named therein.

21.4    Each party be solely liable for and indemnify the other with respect to any liability encumbering any item of property to which that party is entitled.

21.5    Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

21.6    That the Initiating Application filed by the wife on 18 June 2012 and the Response to Initiating Application filed by the husband on 27 July 2012 be dismissed and the proceedings be removed from the Pending Cases List maintained by this Court.

THE COURT NOTES:

A.       The parties intend these orders shall as far as practicable finally determine the financial and other relationships between them and avoid further proceedings between them.

B.       The parties have, contemporaneously with these orders, entered into the following:

B.1     A Binding Financial Agreement with respect to the provision of spousal maintenance to each party;

B.2     A Binding Child Support Agreement providing for the husband to pay by way of child support for the children H and J the following:

B.2.1   The amount of $225.00 per week, per child, commencing on the date hereof and indexed annually in accordance with the CPI commencing 1 July 2014.

B.2.2   Half of the tuition fees and all other fees rendered by the school in respect of H and J’s secondary education at I School or such other school as is otherwise agreed between the husband and the wife (with the other half of such tuition fees being payable by the wife).

B.2.3   Private health insurance premiums at the current level.

B.2.4   The payments referred to in sub-paragraphs B.2.1 to B.2.3 inclusive above include 100 per cent of the husband’s liability to pay child support pursuant to any administrative assessment of child support payable by the husband prior to the date hereof, and the provisions of the Binding Child Support Agreement are intended to replace any such administrative assessment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Richards & Richards 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 HOBART

FILE NUMBER: MLC 3474 of 2012

Ms Richards

Applicant

And

Mr Richards

Respondent

REASONS FOR JUDGMENT

1. Ms Richards and Mr Richards have been involved in property proceedings since June 2012.  These proceedings were listed for hearing before me early in 2014.  The parties have entered into negotiations and have asked the Court to make orders in accordance with a minute of order signed by each of the parties and signed by the husband as director of Richards Pty Ltd.  Richards Pty Ltd is a company who is trustee of a number of entities.  The first is the. Richards Family Trust which I will call the Family Trust, the Richards Land Trust, the Land Trust, and the Richards Superannuation Fund, the Superannuation Fund. 

2. Because of the nature of the financial structure of the parties they have asked me to join Richards Pty Ltd as a party to these proceedings.  I take it that this company is the alter ego of one or both of the parties and that it has no significant assets of its own apart from its ability to manage the Family Trust, the Land Trust and as trustee of the Superannuation Fund, and I will be making that order.

3. The background to these proceedings is that the husband is aged 45.  He was a farmer, but he is now no longer employed as the family farm has, I am told and I accept, been disposed of.  The wife is aged 43.  She has had the care of the parties’ three children over the period of the marriage.  The parties’ commenced cohabitation in April 1994 and separated in December 2010, a marriage of some sixteen and a half years.

4. There are three children of that marriage, G aged 18, H who will be celebrating his 15^th birthday this year and J aged 10.

5. The parties own a property at B Street, C Town which has an agreed value of $1,350,000.  The parties have another property which has been sold and the settlement is due next week.  The parties will receive about $160,487 out of the proceeds of sale of that property.  They have money in the ANZ Bank totalling about just under $110,000.  The pool of property is about $1.7 million.

6. The parties’ marriage breakup has been, it seems, extraordinarily financially difficult for the parties and no doubt emotionally and socially difficult.  As a consequence, the pool of assets has been reducing sharply.  When the matter was commenced and each of the parties filed their financial statements they showed assets of about $2.5 to $2.6 million and each of them, quite properly, disclosed the sale of other assets totalling about $7 million.  I am told that the husband and his family have been involved in farming in the K Town area of Victoria over a number of generations and that the husband is no longer able to farm, given the loss of the property.

7. In the terms of settlement the parties have provided for their respective needs as to spouse maintenance by way of a financial agreement which the parties hope is binding under Family Law Act 1975 (Cth) and they have entered into a binding child support agreement in respect of the younger children, H and J. In the terms of settlement it is noted that the wife has put funds aside to enable the parties eldest son, H, to undertake his cadetship.

8. The agreement provides for the splitting of superannuation on a roughly equal basis.  The parties asked that the matter be listed urgently so that these orders could be in place prior to a settlement of one of the properties which is to take place, it would appear, on H’s birthday.  As a result the matter was listed before me today. 

9. Each of the solicitors for the parties assures me that it is a settlement which, given the circumstances of the parties, is appropriate.  There is an issue about contribution.  The husband asserts that his contributions were greater than the wife.  The wife says her contributions have been significant given her responsibilities as wife and as parent of the parties’ three children.  Fortunately for the parties they have not left it to the vagaries of discretionary judges to determine that matter and they have reached their own settlement.  It appears to me, given all of the material before me and the assurances and submissions provided by the legal representative for each party, and I note that each of the parties are represented, that the overall outcome is in all of the circumstances just and equitable and it is just and equitable to make the orders sought by the parties.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 13 December 2013.

Associate:     G Doyle

Date:              13 December 2013