Sparten and Sparten

[2009] FamCA 22

FAMILY COURT OF AUSTRALIA

SPARTEN & SPARTEN [2009] FamCA 22

FAMILY LAW – PROPERTY – Consent orders approved – Final distribution

Family Law Act 1975 (Cth)
Family Law (Superannuation) Regulations 2001

APPLICANT: Ms Sparten

RESPONDENT: Mr Sparten

FILE NUMBER: MLC 7813 of 2008

DATE DELIVERED: 23 JANUARY 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: IN CHAMBERS

REPRESENTATION

SOLICITOR FOR THE APPLICANT: MILLS OAKLEY

SOLICITOR FOR THE RESPONDENT: MARSHALLS & DENT

Orders by consent

1. That the Husband forthwith do all things and sign all documents as may be required to transfer to the Wife all of his right, title and interest in the former matrimonial home situate at and known as L Street being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“[L Street]”) at the expense of the Husband (“the transfer”) free of any encumbrances.

2. That contemporaneously with the transfer the Husband procure a discharge of any mortgage or encumbrance secured against L Street and otherwise indemnify the Wife in respect to any such mortgage and/or encumbrance.

3. That the Husband pay or cause to be paid to the Wife the sum of $2,600,000.00 (Two Million Six Hundred Thousand Dollars) as follows:

   (a)$1,000,000.00 (One Million Dollars) within 60 days of the date of this order; and

   (b)$1,600,000.00 (One Million Six Hundred Thousand Dollars) within 120 days of the date of this order.

4. That contemporaneously with the Husband making the payments referred to at paragraphs 3 (a) and (b) hereof, the Wife do all such acts and things and sign all such documents as may be required to:

   (a)resign as a director and office bearer and transfer to the Husband or his nominee her shareholding (if any), options (if any) and any right, title or interest of whatsoever nature or kind she may have in:

   (i)A Pty Ltd

   (ii)B Imports Pty Ltd

   (iii)C Australia Pty Ltd

   (iv)Sparten Family Trust No. 1 and D Trust Partnership

   (v)E Investments Pty Ltd

   (vi)F Pty Ltd

   (vii)G Pty Ltd

   (viii)H Pty Ltd

   (ix)I Pty Ltd

   (x)J Pty Ltd

   (xi)K Pty Ltd

   (xii)L Pty Ltd

   (xiii)M Pty Ltd

   (xiv)N Pty Ltd

   (xv)O (Aust) Pty Ltd

   (xvi)P (Aust) Pty Ltd

   (xvii)Q Pty Ltd

   (“the companies”)

   (b)relinquish any claims she may have of whatsoever nature or kind in respect of the;

   (i)       Sparten Family Trust No. 1

   (ii)     R Trust

   (iii)L Street Investment Trust

   (iv)L Trust and

   (v)B Imports Trust

   (“the trusts”); and

   (c)relinquish any claims she may have of whatsoever nature or kind including but not limited to unit holdings and rights in respect of the;

   (i)K Unit Trust

   (ii)B Imports Unit Trust

   (iii)C Unit Trust and

   (iv)S Unit Trust

   (“the unit trusts”).

5. That the Husband forthwith do all such acts and things and sign all such documents as may be required to:

   (a)pay and indemnify and keep indemnified, or cause the companies to pay and indemnify and keep indemnified, the Wife in relation to any and all debt, liability, interests, costs or outgoings in relation to:

   (i)any and all creditors of the companies and/or the trusts.

   (ii)any and all borrowings by the companies;

   (iii)any and all liability to the Australian Taxation Office owing by the Husband (personally) or any of the companies or the trusts and any interests, costs or penalties applicable thereto including any taxation on income actually or notionally distributed to the Wife (whether such liabilities have been assessed or are yet to be assessed) from the companies and/or the trusts up to the date of these orders;

   (iv)any and all hire purchase or lease liabilities in respect of any assets owned by the companies and/or the trusts;

   (v)any and all other debt or liability of whatsoever nature in respect of the companies and/or the trusts including but not limited to any debit loan account in the Wife’s name in respect of the companies and/or the trusts;

   (vi)any personal guarantees given by the Wife (if any) in respect of the debts of the companies and/or the trusts.

6. That forthwith upon the making of these orders the Husband:

   (a)cause F Pty Ltd as trustee for the R Trust to provide to the Wife, at the Husband’s expense, a charge in registrable form (“the [F Pty Ltd] charge”) over the shares held by F Pty Ltd in G Pty Ltd to secure the payments due by the Husband to the Wife pursuant to paragraphs 3(a) and (b) herein totalling $2,600,000.00; and

   (b)cause G Pty Ltd to provide to the Wife, at the Husband’s expense, a charge in registrable form (“the [G Pty Ltd] charge”) over the shares held by G Pty Ltd in H Pty Ltd to secure the payment due by the Husband to the Wife pursuant to paragraph 3 (a) and (b) herein totalling $2,600,000.00.

7. That pending receipt by the Wife of the payments due to her pursuant to paragraphs 3(a) and (b) hereof:

   (a)the Husband by himself, his servants and agents be and is hereby restrained from divesting himself of any office or shareholding in and/or control of the R Trust, G Pty Ltd and H Pty Ltd (“the Entities”) or from divesting himself or reducing the value of his shareholding or interest in the Entities, including but not limited to the following:

   (i)varying, modifying, changing or amending his powers and duties in respect of the Entities;

   (ii)resigning any office held by him in the Entities;

   (iii)selling, transferring, alienating or encumbering any shares held by him in the Entities;

   (iv)issuing, or permitting to be issued, any additional shares in the Entities such as to dilute his current interest in the Entities;

   (v)appointing any other directors or office holder in the Entities;

   (vi)resigning as an appointor of the R Trust; and

   (vii)selling, assigning, further encumbering or otherwise dealing with the real property known as and situate at T Street in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the [T Street] property”) without first providing the Wife with 28 days written notice of an intention to so deal with the property.

8. That in the event of the default by the Husband to pay to the Wife those payments due to her pursuant to paragraphs 3(a) and (b) hereof:

   (a)The wife shall forthwith register the F Pty Ltd charge and the G Pty Ltd charge; and

   (b)The husband shall use his best endeavours to cause G Pty Ltd to sell the shares held by G Pty Ltd in H Pty Ltd (which holds the T Street property) and shall use his best endeavours to cause H Pty Ltd to agree to the sale of G Pty Ltd’s interest in the T Street property, the sale proceeds from the shares of which are to be applied as follows;

   (i)firstly, in payment of all costs, commissions and expenses of the sale of G Pty Ltd’s interest in the T Street property;

   (ii)Secondly, in payment of so much of the payment due to the wife pursuant to 3(a) and/or 3(b) as is then outstanding together with interest on those payments in accordance with rule 17.03 of the Family Law Rules from the due dates adjusted monthly;

   (iii)Thirdly, the balance then remaining into G Pty Ltd’s accounts.

9. That upon receipt by the Wife of the payments in paragraphs 3(a) and (b), she forthwith do all such acts and things and sign all such documents as are necessary to remove the F Pty Ltd charge and the G Pty Ltd charge.

10. That the Husband pay, or cause to be paid, to the Wife the following sums:

    (a)Until the Husband’s compliance with Order 3(a) hereof;

    (i)Periodic payments of $1,160.00 per week, with such periodic payments to be made to the wife’s Commonwealth Bank account, account number …; and

    (ii)non-periodic payments inclusive of utility bills and outgoings for L Street, with such non-periodic payments to be paid directly to the relevant service provider; and

    (b)    $631,200, such sum to be paid as follows;

    (i)$100,000 on or before 30 June, 2009;

    (ii)$105,200 on or before 30 June, 2010;

    (iii)$105,200 on or before 30 June, 2011;

    (iv)$105,200 on or before 30 June, 2012;

    (v)$65,200 on or before 30 June, 2013;

    (vi)$75,200 on or before 30 June, 2014; and

    (vii)$75,200 on or before 30 June 2015.

11. That for the purposes of the payments to the Wife pursuant to paragraph 10(b) hereof, the Wife shall continue to be employed as a consultant by one of the companies, and the Wife’s gross remuneration package of $631,200 (inclusive of all leave and statutory award entitlements) shall be paid to the wife as follows:

    (a)$100.00 per week ($5,200.00 per annum) commencing 1 July 2009, and concluding on 30 June, 2015, such sums to be paid into the wife’s Commonwealth Bank account, account number … at such dates and times within the financial year as the Husband elects; and

    (b)The following employer contributions to the Wife’s nominated superannuation fund;

    (i)$100,000 on or before 30 June, 2009;

    (ii)$100,000 on or before 30 June, 2010;

    (iii)$100,000 on or before 30 June, 2011;

    (iv)$100,000 on or before 30 June, 2012;

    (v)$60,000 on or before 30 June, 2013;

    (vi)$70,000 on or before 30 June, 2014; and

    (vii)$70,000 on or before 30 June 2015.

12. That in security for the payments due to the Wife pursuant to paragraph 10(b) hereof, the Husband do all such acts and things to cause L Pty Ltd, at his expense;

    (a)to provide the Wife with an equitable charge to the value of $631,200.00 (“the equitable charge”) over the real property situate at and known as U Street in the State of Victoria being the whole of the land being more particularly described in Certificate of Title Volume … Folio … (“the [U Street] property”); and

    (b)enable the Wife to lodge a caveat over the U Street property securing the equitable charge; and

    (c)to insure and keep insured the U Street property for its full replacement value with a reputable insurer, and to provide to the Wife evidence of that insurance when requested to do so.

13. That in the event that the Husband defaults in making any one of the payments due to the Wife in accordance with paragraphs 10(b)(i) to (vii) hereof, the Husband shall sign or cause to be signed, all documents and do all things necessary to cause the U Street to be forthwith sold altogether out of Court ("the sale").  Upon the completion of the sale, the proceeds of the sale be applied:

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

    (b)Secondly to discharge the mortgage and any other encumbrance affecting the real property;

    (c)Thirdly so much of the payment pursuant to 10(b) as is then outstanding to the Wife, together with interest in accordance with rule 17.03 of the Family Law Rules adjusted monthly from the last due date; and

    (d)Fourthly the balance to the L Trust.

14. That until such time as the Husband satisfies his obligations pursuant to paragraph 10(b) hereof, the Husband by himself, his servants or agents be restrained from:

    (a)     resigning any office held by the Husband in L Pty Ltd;

    (b)resigning as an appointor of the L Trust or appointing any co-appointor of the L Trust;

    (c)transferring his shares in L Pty Ltd;

    (d)causing, permitting or abiding the issue of further shares in L Pty Ltd such as would dilute the Husband’s interest in the entity;

    (e)undertaking any course of action or doing any act or thing which may deprive the Wife of the security as provided for in order 12 herein; and

    (f)encumbering the U Street Property such that the net equity in the property would be less than the equitable charge.

15. That upon the final payment due by the Husband pursuant to paragraph 10(b) herein being made to the Wife, the Wife do all such acts and things and sign all such documents as may be necessary to revoke her equitable charge over the U Street property and provide the Husband with a signed Withdrawal of Caveat at her expense.

16. That these orders are binding on the trustee of the Melbourne Superannuation Fund (“the Fund”).

17. That the base amount be allocated to the Wife out of the interest of the Husband pursuant to section 90MT(1)(a) of the Family Law Act 1975 is $100,000.00.

18. That in accordance with Section 90MT(1) (a) of the Family Law Act 1975 (“the Act”):

    (a)whenever a splitable payment becomes payable to the husband from his interest in the Fund the Wife be paid such an amount to be calculated in accordance with part 6 of the Family Law (Superannuation) Regulations 2001, using  a base amount of $100,000.00; and

    (b)the Husband’s entitlements in the Fund is correspondingly reduced by force of this order.

19. That in order to facilitate the enforcement of this order, the trustee forthwith 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 Family law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement of the Wife created by these orders; and

    (b)the entitlement by way of a splitable payment out of the Husband’s interest in the Fund.

20. That these orders have effect from the operative date.

21. That the operative date for the purpose of these orders is the fourth business day after the day on which a sealed copy of these orders is served upon the trustee of the Fund by the wife’s solicitors.

22. That until the happening of any of:

    (a)the transfer or (“rolling over”) into another Superannuation Fund of the payment split created by these orders; or

    (b)the Wife satisfying a condition of release and being paid the payment split which was created by these orders; or

    (c)the Wife executing a waiver of her rights within the meaning of Section 90 MZA of The Act in relation to the payment split created by these orders;

    the Husband shall be and is hereby restrained by himself or his agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interest in the fund a “non-splitable payment” within the meaning of the Family Law (Superannuation) Regulations 2001 AND the trustee shall give effect to this order.

23. That the employer contributions to be paid to the wife pursuant to paragraph 11(b) hereof, and the base amount to be paid to the wife pursuant to paragraph 17 hereof, shall be paid into the L Sparten Superannuation Fund, and the Wife shall forthwith provide the Husband with documents evidencing that the L Sparten Superannuation Fund is a complying fund in accordance with the SIS Regulations.

24. That save as otherwise provided for herein the Wife retain absolutely the following:

    (a)the Mercedes Benz motor vehicle registration number … currently in her possession;

    (b)funds standing to the credit of any bank accounts in her sole name;

    the furniture and contents of the L Street property save and except for the items listed in Schedule A annexed hereto.

25. That save as otherwise provided for herein the Husband retain absolutely the following:

    (a)the Mercedes Benz Motor Vehicle registration number … currently in his possession;

    (b)funds standing to the credit of any bank account in his sole name;

    (c)the chattels listed in Schedule A annexed hereto;

    (d)the furniture and household effects located in the U Street property;

    (e)the furniture and household effects located in the Husband’s rental property;

    (f)the Husband’s Superannuation entitlements in Melbourne Superannuation Fund and Victorian Superannuation Fund subject to the splitting orders contained herein; and

    (g)his interest in the companies, the trusts and the unit trusts subject to the obligations created by these orders.

26. That of the items to be retained by the husband pursuant to Schedule A:

    (a)those items listed under paragraph 1 are to be collected by the Husband within 7 days of the date of these Orders upon the Husband providing the Wife with 24 hours prior notice of his intention to do so;

    (b)those items listed under paragraph 2 are to be left at L Street by the Husband until 31 January 2011 or 7 days after the sale of L Street, whichever is the earlier, or such later date after 31 January 2011 that the Husband agrees to in writing;

    (c)that the wife shall provide the Husband with access to the items listed in paragraph 2 of Schedule A for collection upon the Husband providing the Wife with 24 hours prior notice of his intention to collect those items (the collection of those items being subject to paragraph 26(b) hereof); and

    (d)the Wife shall provide the Husband’s nominated valuer and/or insurance provider access to L Street for the purpose of insuring those items listed in Schedule A which are to remain at L Street in accordance with these Orders.

27. That upon the Wife receiving her first payment pursuant to paragraph 3(a) hereof, she thereafter be solely responsible for all outgoings with respect of the L Street property of whatsoever nature and kind.

28. That the parties do all acts and things sign all necessary documents to give validity and operation to these orders.

29. Should any party fail or refuse to sign any document necessary to give effect to the these orders a Registrar or a Deputy Registrar of the Family Court of Australia at Melbourne be and is hereby appointed pursuant to Section 106 (A) of the Family Law Act 1975 to sign any such documents for and on behalf of and in the name of the defaulting party.

30. That these orders shall be binding upon the heirs, executors, administrators and assigns of each party respectively.

31. That 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 real and personal property (including choses-in-action) registered in the name of or in the possession of such party or to which that party is legally or beneficially entitled as at the date of these orders (the furniture and chattels situated in the L Street property to be deemed in the possession of the Wife, save as provided in the Schedule A, and the furniture and chattels situate in the U Street property and in the property rented by the Husband to be deemed in the possession of the Husband);

    (b)moneys standing to the credit of the parties in any joint bank account shall be paid to the Husband and the parties shall each cause such account to be closed forthwith;

    (c)that the Wife forego any claim she may have to any superannuation benefits belonging to or earned by the Husband save for the entitlements conferred upon the Wife pursuant to Orders 16 to 21 herein.

    (d)that any policy of life insurance or assurance remain the sole property of the owner named thereon.

    (e)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  these orders.

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

    (g)each party be solely liable for and indemnify the other against any liability for credit cards in the name of that party;

    (h)that the Husband shall not remove the Wife from the existing family private medical insurance policy prior to receipt by the Wife of the first payment pursuant to paragraph 3(a) hereof.

32. That the Application of the Wife for final orders with respect to property settlement and spousal maintenance filed on 27 August 2008 and the Amended Application filed on 20 November 2008 and the Form 1A Response with respect to property settlement and spousal maintenance filed by the Husband on 12 November 2008 be otherwise dismissed.

IT IS DIRECTED:

1. That the Minutes of Consent Orders remain on the Court file.

IT IS CERTIFIED:

1. That pursuant to Rule 19.50 of the Family Law Rules it was reasonable to brief Senior Counsel.

AND THE COURT NOTES:

A.That pursuant to Section 81 of the Family Law Act the parties intend that these orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

B.That the parties this day have entered into a Binding Financial Agreement with respect to spousal maintenance.

SCHEDULE A

ASSETS IN POSSESSION OF WIFE TO BE RETAINED BY THE

HUSBAND

1.Items to be collected by the husband in accordance with Order 24(a):

(a)oval hand painted porcelain plaque (large dimensions) of flowers in a glass jar. French origin. Circa 1820.

(b)oval hand painted porcelain panel depicting Mary Antoinette holding flowers. Circa 1840.

2.Items to be collected by the husband in accordance with Order 24(b):

(a)oval Continental porcelain plaque of a girl long hair & red dress in well carved frame. Circa 1850

(b)pair of panels. Woman serving & male drinking. 

(c)oil painting of cattle in highland and lake Scotland

(d)oil painting on board Venice scene oval. Italian

(e)porcelain candle holder mirror with cherubs and flowers

(f)oil painting squirrel

(g)oil painting Incoming fishing fleet

(h)oil painting Rouen

(i)oil painting the Grand Palace

(j)oil on panel x 4. Four paintings each of figures (people)

(k)oil painting Flowers & fruit

(l)oil painting coach & horses

(m)oil painting Farm Girl

(n)pair of small Continental miniatures. Woman in red blouse, woman in white dress.

(o)oil painting of figures in masks

(p)water colour English country scene

(q)water colour English country home and scene.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7813  of 2008

MS SPARTEN

Applicant

And

MR SPARTEN

Respondent

REASONS FOR JUDGMENT

1. This is a property settlement between the husband and the wife.  At the request of the parties, I have made orders in chambers finalising all outstanding issues between them. 

2. To say the least, the matters is a complex financial case and both parties have had the benefit of counsel including as I understand, senior counsel.

3. The parties were married in 1971 and separated in December 2007.  Their relationship is therefore a long one.  The wife is 58 years of age and the husband 57 years.  Each party has some health difficulties.

4. The details of the background of the matter are well set out in the affidavit of the wife filed 27 August 2008 and of the husband on 12 November 2008.  Each party filed a comprehensive financial statement.

5. I have had the opportunity of reading both of the parties’ written material and although as I said, the matter is one of some complexity, I have a reasonable picture of the parties’ financial circumstances and how they arrived at those circumstances.  Their material also indicates their respective futures.

6. It is the responsibility of the Court to make orders between parties finalising financial relationships between them only in circumstances where it is just and equitable to do so.  One of the components of a just and equitable settlement is that it has a strong sense of commercial reality about it in circumstances where the parties are well aware of each other’s financial positions and both are comfortable with the outcome after receiving appropriate professional advice.

7. In these circumstances, I am comfortable in saying that I understand what they are doing and that they have both had ample advice such that I can be confident in saying that the orders I am now making are just and equitable in the circumstances.

I certify that the preceding Seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable

Associate: 

Date:  23 January 2009