Stillwood and Dance

[2008] FamCA 839

FAMILY COURT OF AUSTRALIA

STILLWOOD & DANCE [2008] FamCA 839

FAMILY LAW – PROPERTY ORDERS - S79(2) Just and equitable

Family Law Act 1975 (Cth)

APPLICANT: MR STILLWOOD

RESPONDENT: MS DANCE

FILE NUMBER: MLF 3371 of 2004

DATE DELIVERED: 22 SEPTEMBER 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 22 SEPTEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR CROFTS

SOLICITOR FOR THE APPLICANT: TRESS COX LAWYERS

COUNSEL FOR THE RESPONDENT: MR KIRKHAM QC with him MR MELELLI

SOLICITOR FOR THE RESPONDENT: TOLLHURST DRUCE & EMMERSON

ORDERS

IT IS ORDERED BY CONSENT:

1.

(a)THAT this is an order to which s.77A of its Family Law Act applies;

(b)the amount of $300,000 of the monies ordered to be paid by the husband to the wife is attributable to the provision of maintenance for the wife.

1. THAT on or before 19 March 2009 (“the date”) or upon settlement of the sale of the property situate at N (whichever is the sooner) the husband pays the wife the sum of $1,000,000 (“the payment”).

2. THAT on or before the date the husband and wife do all such things and sign the documents as may be required to transfer to the wife at the expense of the wife:

   A.       all of the husband’s interests in the real property situate at L free of encumbrance (“[L property]”) Volume … Folio …;

   B.       all of the husband’s interests in the real property situate at P free of encumbrance (“[P property]”) Volume … Folio ….

3. THAT pending the transfers of L property and P property pursuant to paragraph 3:

   A.       the parties not further encumber the properties;

   B.       the husband continue to meet all interest payments in respect of the existing mortgage to the Commonwealth Bank encumbering L property and when they fall due;

   C.       the parties do all things to direct to the wife all income from L save the sum of one dollar per month;

   D.       the wife otherwise have the sole use and management of L property and be responsible for and indemnify the husband against all expenses and liabilities arising from or associated with the L and P properties save for the mortgage expense referred to at paragraph 4(b) herein.

4. THAT to further secure the performance of the husband as required by paragraph 4 herein, the husband hereby grants to the wife a caveatable in the interest in the property situate at N Volume … Folio … (“[N property]”) to secure as a charge ranking second only to the existing mortgage on N property for such sum owing on the L property mortgage referred to in paragraph 4(b) herein from time to time and the wife:

   A.       consent to any third or subsequent change within seven (7) days of the husband’s written notice to do so, provided that contemporaneously with such consent, the husband makes the payment referred to in paragraph 2 hereof;

   B.       provide the husband with a withdrawal of caveat upon his compliance with paragraph 4 hereof.

5. THAT in the event that the whole of the payment has not been made by the date (or by such other date as the parties may agree to in writing) and/or the obligations of the husband as set forth in paragraphs 3(a) and (b) herein have not been complied with by the date then N property be forthwith sold altogether out of court (“the sale”) and upon completion the sale of the proceeds of the sale be applied:

   A.       first to pay all costs, commissions and expenses on the sale;

   B.       secondly to discharge the existing mortgage on N property;

   C.       thirdly to discharge the existing mortgage on L property;

   D.       fourthly so much of the payment as is then outstanding together with interest thereon as provided for by the Family Law Rules from the date to the wife;

   E.        fifthly the balance then remaining to the husband.

6. THAT forthwith the husband do all things and sign all documents necessary in order to transfer to the wife all his interest in the jointly held Commonwealth Bank Account number ….

7. THAT the husband and wife forthwith do all things and sign all documents necessary to:

A.provide for the husband to resign as a director of Stillwood and Dance Pty Ltd in favour of the wife  and/or her nominee;

B.provide for the husband to transfer any and all shares in his name in Stillwood and Dance Pty Ltd to the wife and/or her nominee;

C.provide for Stillwood and Dance  to resign as trustee of the Stillwood Family Trust (also known as the Stillwood and Dance Family Trust) (“the trust”) in favour of a trustee nominated by the husband;

D.provide for the wife to resign as appointer on such other office as she may hold in respect of the Trust in favour of the husband or his nominee;

E.provide for the wife to transfer to the husband all her right title and interest in any asset or liability loan accounts in the Trust and resign or retire as a signatory to any account or facility operated by the Trust.

1. THAT forthwith the wife at the expense of the husband do all things and sign all documents necessary to transfer to the husband all her right title and interest in any asset or liability loan account in the Stillwood Asset Management Trust.

10. THAT forthwith the wife at the expense of the husband do all things and sign all documents necessary to:

A.transfer to the husband all her right title and interest in any shares in her name in E Pty Ltd;

B.transfer to the husband all her right title and interest in any units in her name in the Stillwood Family Unit Trust;

C.transfer to the husband all her right title and interest in any asset or liability loan account in the Stillwood Family Unit Trust.

11. THAT in the event that the wife incurs a tax liability by reason of the payment to the husband of the sum of $1 referred to in paragraph 4(c) herein, the husband hereby indemnifies her in respect of such liability.

12. THAT in accordance with s90MT(1)(b) of the Family Law Act:

A.       the wife is entitled to the specified percentage being 100% of each splittable payment made out of the husband’s interest in the self managed superannuation fund Stillwood and Dance Superannuation Fund;

B.       the husband entitlement is correspondingly reduced to zero.

13. THAT paragraph 12 has effect from the operative date which is the date of transfer of the transferable benefit within seven (7) days of this date.

14. THAT unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these orders:

A.     each party to solely be 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, in particular:

i.the husband retain:

§units U1, U2, U3, U4, U5 at U;

§the companies Stillwood Property Trust Pty Ltd and Stillwood Management Pty Ltd;

§the Stillwood Property Trust and the X Trust;

§the benefit of deposits paid in respect of storage units and R;

§bank accounts, superannuation and shares in his name;

§his car and golf club membership;

§furniture possessions and like chattels in any of the above properties;

ii.the wife retain:

§  her VicSuper superannuation;

§  shares and bank accounts in her name;

§  the furniture, personal possessions and like chattels in the P property and the L property save that she make available to the husband the framed football memorabilia, the husband’s framed sporting trophies, the collector’s cricket bat;

B.     the wife make available for professional copying at the husband’s expense all family photographs, videos and mini DVDs in her possession and such copies be retained by the husband and the husband make available for professional copying at the wife’s expenses all family photographs, videos and mini DVDs in his possession and such copies be retained by the wife;

C.     insurance policies remain the property of the owner named thereon;

D.     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 to these orders;

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

15. THAT all extant applications before the court relating to property or spousal maintenance be and are hereby dismissed and the proceeding be and are hereby dismissed and all proceedings be removed from the docket of Young J.

IT IS CERTIFIED

16. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel including Senior Counsel for each of the husband and wife.

17. THAT all documents subpoenaed to this Honourable Court be forthwith returned by the Subpoena Clerk of the Family Court of Australia to the person providing the same.

18. THAT the ex-tempore orders be transcribed for the court file and be made available to the parties.

CHILDREN’S ORDERS

19. THAT the appointment of the Independent Children’s Lawyer be forthwith discharged.

THE COURT NOTES

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

B.THAT the husband cause the Trustee of the Trust to vest in the two younger children of the marriage the Colonial First State Imputation Fund on their respectively attaining the age of 18 years.

C.THAT this matter settled at a Judicial Settlement Conference before Her Honour Justice Dessau and was referred to this court for the making of these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3371 of 2004

MR STILLWOOD

Applicant

And

MS DANCE

Respondent

REASONS FOR JUDGMENT

1. In the matter of Stillwood and Dance I have before me consent minutes of final order.  The history of this matter is that it was listed as part of my docket.  It was a case where the hearing would have been in excess of five days, and perhaps up to 10 days as a worst case scenario.

2. The parties have, at the direction of the court, attended a judicial settlement conference before her Honour Dessau J.  The parties were represented by counsel experienced in Family Law and with solicitors of each practice for decades.  With that background, each of them were well advised. 

3. My general overview is that the pool was approximately $6 million, though clearly the husband would have contended in court that it was a lesser value, perhaps by up to 20 per cent or thereabouts, but all that would have been the subject of proof and at great cost to the parties.

4. The outcome of this case as settled is that the wife takes both real property, cash and a superannuation fund for the future that provides certainty to her, and clearly by community standard more than sufficient moneys for herself and her family security. The husband otherwise retains substantial assets by community standard plus an ability to work and clearly is a person comfortable in business and able to make decisions and re-establish to the extent that he needs so to do his future.

5. The requirement upon the court is to conclude that the property orders are just and equitable under section 79(2) of the Family Law Act1975.  In the context of this case, because of the quantum of assets, the experience of counsel and the solicitors, the extent to which the case has been meticulously prepared at great cost to the parties in the context of valuations and there really being no hidden surprises, perhaps with the qualification of capital gains taxes being outlined, then this was an informed decision by parties to settle.  There are very practical reasons for settling. 

6. In the context thereof, I have no hesitation in concluding that the parties should be bound by their agreement, and I therefore declare the consent orders are just and equitable pursuant to the provisions of the Family Law Act.

7. With those few words, and with the notation that the parties are in court and have heard what I have said and by consent, asked for the orders to be made and have executed the minutes before me I will pronounce final orders.

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

Associate: …

Date: