Stokerton & Stokerton (No 2)
[2023] FedCFamC1F 695
•21 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stokerton & Stokerton (No 2) [2023] FedCFamC1F 695
File number(s): MLC 1922 of 2020 Judgment of: GILL J Date of judgment: 21 August 2023 Catchwords: FAMILY LAW – PROPERTY – distribution and vesting of trusts.
FAMILY LAW – PROCEDURE – where application for adjournment was refused – evidence regarding trust accounts adduced from an accountant who was not a single expert – questions regarding the wife’s capacity.
FAMILY LAW – THIRD PARTY INTERVENER – wife’s former legal representatives as third party intervener – orders to secure debt of unpaid legal fees and disbursements pursuant to costs agreement.Legislation: Family Law Act 1975 (Cth) - ss 75(2), 79, 92, 102NA, 172, 174, 180, 194, 198
Federal Circuit and Family Court of Australia Act 2021 - s 67
Legal Profession Uniform Law Application Act 2014 (Vic) - Part 4.3
Cases cited: Benson & Drury (2020) FLC 93-998
Bevan v Bevan (2013) 49 FamLR 387
Commissioner of Taxation v Worsnop (2009) 40 FamLR 552
Jabour & Jabour (2019) FLC 93-898
Keating & Keating (2019) FLC 93-894
Kennon & Kennon (1997) 22 Fam LR 1
Martin v Martin (2016) 54 Fam LR 548
Stanford v Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 170 Date of hearing: 17-19 July 2023 Place: Melbourne Counsel for the Applicant: Mr Crofts Solicitor for the Applicant: Hope Earle Lawyers Solicitor for the First Respondent: Litigant in Person Solicitor for the Second Respondent: Mr N, M Pty Ltd ORDERS
MLC 1922 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR STOKERTON
Applicant
AND: MS C STOKERTON
First Respondent
M PTY LTD
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
21 AUGUST 2023
THE COURT ORDERS THAT:
1.The wife shall forthwith resign as trustee of the Stokerton Trust .
2.In lieu of the wife taking such steps any document necessary to effect her resignation may be executed by a Registrar of the Court.
3.The husband shall then forthwith cause the Stokerton Trust to vest and in so doing shall:
(a)Cause all outstanding debts owed by the Stokerton Trust to be paid;
(b)By distribution cause the debts owed by the parties to the Stokerton Trust to be expunged;
(c)Realise the remaining assets of the trust;
(d)Cause all necessary taxation return for the trust to be lodged;
(e)Meet all taxation liabilities from the remaining trust assets;
(f)Subject to Order 10 below shall distribute any remaining property of the trust to the husband and wife in the ratio 55 per cent to the husband and 45 per cent to the wife.
4.The husband is appointed as trustee for the sale of O Street Suburb P, Victoria, and trustee for the proceeds of the sale of that property, and in aid of such is authorised to execute documents to effect the sale of the property in lieu of the wife.
5.Within thirty (30) days of the date of these Orders the wife is to vacate the property situate at O Street, Suburb P (“the Suburb P property”).
6.The wife is restrained by injunction from interfering in any way with the sale of the Suburb P property including but not limited to:
(a)Returning to the Suburb P property after the expiration of the 30 days in Order 5 above; and
(b)Being within 200m of the Suburb P property on the day of the auction or the day of any inspection of which she is notified in writing at least twenty-four (24) hours prior.
7.The husband is then forthwith to prepare the Suburb P property for sale following taking advice from a selling agent as to appropriate steps to prepare the property for sale.
8.The husband shall then forthwith place the Suburb P property on the market for sale on such terms and conditions as nominated by the husband.
9.Upon settlement of the Suburb P property, the proceeds of sale are to be applied, subject to Order 10:
(a)First, to pay the costs, commissions and expenses of sale, including the expenses associated with the preparation of the property for sale;
(b)The balance remaining thereafter to achieve a division of the net assets:
(i)55 per cent to the husband;
(ii)45 per cent to the wife; and
(iii)Then a further sum of $85,000 to the wife from the share of the husband.
10.Prior to making payment to the wife in accordance with Orders 3 and 9 the husband shall cause to be paid to M Pty Ltd from the proceeds to which the wife is otherwise entitled pursuant to these orders, in accordance with its written direction, the sum of $238,093.86.
11.The wife retain for her sole use and benefit and to the exclusion of the husband:
(a)All her bank accounts;
(b)Her Motor Vehicle 1;
(c)Her partial property settlements;
(d)Her chattels and personal effects; and
(e)Her superannuation.
12.The father retain for his sole use and benefit and to the exclusion of the wife:
(a)All his bank accounts;
(b)His interest in the Q Trust;
(c)His motor vehicle;
(d)His chattels and personal effects; and
(e)His superannuation.
13.The loan from the wife to the Q Trust shall vest in the husband, and the wife shall not be entitled to claim such against the Q Trust.
14.Unless otherwise specified in these Orders and save for the purposes of enforcing any obligations arising under these Orders or any subsequent Orders:
(a)In relation to items contained in the storage shed the parties shall divide such by taking turns to pick items from the shed until all items are selected, with the wife to take the first pick;
(b)Otherwise each party is solely entitled to the exclusion of the other all property (including choses in action) in the possession of such party as at the date of these Orders;
(c)Insurance policies, including the parties’ respective entitlements to any U Insurance payments, remain the sole property of the owner named therein;
(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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
INTRODUCTION
The primary parties in the proceedings are the applicant husband, Mr Stokerton, aged 55, and the respondent wife, Ms C Stokerton, aged 52. The parties married in mid-1994 and have eight children, currently aged between 9 years and 26 years. The parties separated on 14 September 2018. The younger children are in the care of Ms D Stokerton (an adult child of the parties) and spend no time with the parents.
The second respondent third party intervener, M Pty Ltd, is the legal practice that previously represented the wife and which asserts that the wife is indebted to it.
There are four significant items of property or financial resources, being the former matrimonial home, O Street, Suburb P, the Stokerton Trust, the Q Trust and superannuation held by each party.
The two trusts flow from the paternal family, with the Q Trust being controlled by the husband and his sister, Ms R, through a corporate trustee left to them in their mother’s will. Control over this trust must be jointly exercised. The husband contends that this is a financial resource for him, whilst the wife seeks that it be treated as property of the relationship. As explained later, the Q Trust should be considered to be a financial resource for the husband, the parties lacking sufficient control over the trust to treat it otherwise.
The Stokerton Trust, being a testamentary trust created through the husband’s mother’s will, has the husband with control of appointment, and both parties as trustees. The husband is the primary beneficiary of the Stokerton Trust and holds a number of powers in relation to that trust to render him effective control of that trust. He contends, correctly, that this trust should be treated as property of the relationship.
The parties purchased the Suburb P property in 1994. The wife currently resides in the Suburb P property and it is held solely in her name.
ADJOURNMENT APPLICATION
There were a number of unusual features of the trial.
The first was that the wife, having filed no trial material, did not attend for the commencement of the trial. Orders were then made that caused the parenting proceedings to be dealt with prior to the property proceedings. The parenting proceedings were determined and the Independent Children’s Lawyer (“the ICL”) and Ms D Stokerton, the children’s sibling in whose favour the parenting orders were made, were excused from the proceedings. The property proceedings then commenced, on an undefended basis in respect of the wife, with the second respondent excused until final submissions.
After the commencement of the property proceedings the wife attended the court. The order that the proceedings be conducted on an undefended basis was discharged.
The wife, who was unrepresented, sought that the trial be adjourned. The further context of this application was that the proceedings were subject to a s 102NA order that prevented the parties from personally cross-examining each other.
The wife sought to adjourn the proceedings in part to enable her to obtain legal advice, and in part to obtain further evidence for the trial.
The wife’s application for adjournment was refused, with reasons reserved to be given with this substantive judgment.
No sufficient explanation was given as to why the wife had neither obtained representation nor filed material, or that was suggestive that following an adjournment the wife would have either filed material or secured representation. Insofar as explanation was offered, it was at best tangential to the failure to prepare the case, and raised concern as to her capacity to conduct her case, an issue raised with her as the proceedings unfolded as identified below.
For example, the wife claimed that as a result of litigation in Country S she was concerned that her, and the lawyers in this case, electronic communication was being monitored. It was never clear why this might be the case. It may be accepted that this was a bizarre explanation, that in combination with other matters during the trial posed a question as to the wife’s capacity.
The wife further explained that she had been hampered by injuries received from falling from a ladder some time before the trial.
The wife also asserted that adjournment was necessary to permit repentance and reconciliation of the family.
As to her lack of representation the wife indicated that she had spoken to about 20 lawyers, and expressed an intention to recanvas such. This gave no confidence that the wife would retain lawyers should an adjournment be granted.
As to the financial capacity to secure a lawyer, it may be observed that the wife has previously, repeatedly, received lump sums in advance of trial. No explanation was offered as to the use of such funds or their unavailability to fund legal representation. If more was needed it was unclear why she had not pursued such at an earlier stage.
The wife was offered a further lump sum in advance of this trial to assist in securing representation. It was not taken up.
Further, the wife was subject to a s 102NA order. An adjunct to such an order is the availability of a scheme to provide legal representation. No indication was given that she had pursued representation through the associated scheme.
The claims in relation to Country S, even if accepted at face value, and that the wife had fallen from a ladder, did not provide any adequate explanation for the failure to file material, nor any comfort that material would be prepared in a timely fashion should an adjournment be granted.
The evidence led by the father was persuasive that the wife has been uncooperative in the preparation of the matter for trial.
A further issue pursued on adjournment was whether there was sufficient evidence to enable the court to determine the dispute. The husband had secured evidence from an accountant, Mr T, who had prepared accounts for the trusts, but who also gave evidence as to the composition of the trust assets and liabilities and the process of resolving those by vesting the Stokerton Trust in order to enable the property dispute to be finalised. Mr T was not a single expert. However, given the lacuna without his evidence, leave was granted to the husband to adduce evidence from him. This meant that there was sufficient evidence to permit the resolution of the proceedings.
The lack of confidence that the wife would prepare the matter for trial, when seen in the context that the proceedings have now been on foot since February 2020, and in the further context that the husband has taken significant steps to ready the matter for trial pointed against the granting of an adjournment, as being inconsistent with the overarching purpose set out at s 67 of the Federal Circuit and Family Court of Australia Act 2021 (“the FCFCOA Act”). In particular, the further adjournment of the proceedings, in the face of inadequately explained default on the part of the wife, and where the prospects of her proper preparation are lacking, is not consistent with the just resolution of the dispute, nor with such being obtained quickly, inexpensively or efficiently. The increased burden that would be placed upon the husband, absent significant prospects of better preparation by the wife, means that the resolution, would be delayed for little purpose, and would be unjust in itself.
The adjournment was accordingly refused. This left the wife without trial material, and, given the s 102NA order, unable to cross-examine the husband. She was however permitted to otherwise cross-examine the other witness, Mr T, and make submissions.
Having resolved the initial adjournment application there was, however, cause to consider, during the conduct of the trial, whether the trial should continue. This issue arose from an accretion of factors that heightened my concerns as to the wife’s capacity.
The combination of the wife’s failure to file material, her claim in respect of Country S, her repeated late attendances for court throughout the trial, her repeated raising of the parenting proceedings despite my explanation that they were completed and no longer before me other than as to the giving of reasons, the wife’s repeated representations as to the need to retain the house for the family as a whole (despite orders that restrain both parents from coming into contact with the children, subject to particular exceptions) and the evidence presented by the second respondent, the previous lawyers for the wife, of the receipt of thousands of emails from her, and their ultimate requirement that the wife undergo a psychological assessment for them to continue to be instructed by her (a step refused by the wife), raised the spectre that the wife may not be capable of adequately conducting the proceedings.
I raised with the wife that this was a matter that I was considering as the case progressed.
However, on the wife making final submissions these concerns dissipated.
In those submissions the wife adequately addressed the issues in the case, demonstrating an understanding of the proceedings. For example, despite her opposition to the ending of financial relations with the husband, on being advised that this was an objective of the proceedings, the wife was able to adjust her submissions to incorporate the effects of bringing financial relations to an end. Further the wife demonstrated an understanding of the other issues in the case, of the property of the parties, was able to differentiate between the contributions made by each of them, and addressed the implications of different outcomes.
The wife demonstrated a capacity to engage with the issues in the case to a degree that negatived concerns about her capacity.
Accordingly, the trial continued without adjournment.
ORDERS SOUGHT
The husband
The orders sought by the husband are set out as an annexure to this judgment.
Following clarification, it was identified that the husband seeks that the Suburb P house be sold, with the husband holding the authority to effect the sale and the wife being excluded from the home, and the net proceeds divided 65-35 per cent in his favour, the Stokerton Trust be vested, with loans owed by the trust to the children paid out as part of that process, the loans to the parties be expunged by distribution, taxes paid and the parties then receive the balance 65‑35 in the husband’s favour or, if there is a net debt position it be shared 50-50.
Previous distributions to the parties should not be reckoned into the 65-35 split.
The wife should assign the debt owed to her from the Q Trust to the husband.
The parties should retain their superannuation.
This should see the husband receiving greater than 65 per cent of the net property of the parties.
The wife
The wife sought that she retain the home, or it be transferred into joint names with the husband, and that, after the children were paid out, and various other debts are paid, the parties retain the Stokerton Trust. She sought that the Q Trust pay out various expenses including legal fees. If there was to be some form of distribution the wife sought that it be on a 50-50 basis. She sought an equalising of superannuation.
The second respondent
The second respondent sought orders that their fees be paid from the wife’s share of any property distribution prior to the wife receiving her share. They sought that the fees be paid of $224,158.16 along with interest, but conceded that the quantum could be subject to adjustment should I consider that the amount was not reasonable and proportionate.
The wife, after disputing both the fees and resisting any order for payment, conceded that the second respondent should be paid, but disputed that amount. While she mused that maybe they would receive $100,000, she did not concede this to be the case.
MATERIAL RELIED UPON
The husband relied upon the following:
(a)Husband’s affidavit of 14 June 2023;
(b)Husband’s affidavit of 13 July 2023;
(c)Affidavit of Mr T filed 13 July 2023; and
(d)Evidence of Mr T given in relation to the adjournment application at the commencement of the trial and then adopted into the substantive trial, along with further oral evidence given by Mr T during the trial proper.
During submissions the husband sought to rely upon material that was before the court in the parenting proceedings immediately prior to the property proceedings, but not referred to in the above list of material. He was refused permission to do so.
The wife, having filed no material in accordance with directions, or at all in preparation for the trial, was not permitted to rely upon any affidavit material.
The second respondent relied upon the following:
(a)Affidavit of Ms L filed 17 March 2022; and
(b)Affidavit of Mr N filed 13 July 2023.
PRINCIPLES
The key to the exercise of jurisdiction in relation to the property of the parties is that it must be just and equitable, both to adjust the property interests at all (Stanford v Stanford (2012) 247 CLR 108 per French CJ, Hayne, Kiefel and Bell JJ at [35]) and to adjust them in a particular manner (Bevan v Bevan (2013) 49 FamLR 387 per Bryant CJ and Thackray J [86]). This is a requirement that permeates the whole process of consideration of adjustment of property interests, from start to end.
The necessary first step in consideration of whether it is just and equitable to make an order is, in accordance with Stanford [37] to identify “according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.”
These interests are set out later in the judgment.
Section 79 then requires that the contributions of the parties are to be given consideration. As was identified by the Full Court in Jabour & Jabour,[1] the assessment of contributions is the assessment of the myriad of contributions made throughout the relationship, in the light of their nature, form, context and circumstances, and the holistic evaluation of their significance.
[1] Jabour & Jabour (2019) FLC 93-898.
The husband raised, late in the proceedings, that his contributions be assessed through the lens of Kennon.[2] His claim was that, by virtue of the wife’s perpetration of family violence upon the husband, his contributions were rendered significantly more arduous.
[2] Kennon & Kennon (1997) 22 Fam LR 1.
The principles invoked by the husband are set out in Kennon and Keating & Keating (“Keating”).[3]It was highlighted in Keating that imposing a circumstance of family violence upon a party to the relationship may lead to contributions being “significantly more arduous” and cause a “discernible impact” on the parties’ contributions.[4]
[3] Keating (2019) FLC 93-894.
[4] Ibid [35]–[36].
However, the assessment of such an impact should not be undertaken in a compartmentalised manner. In Benson & Drury,[5] the Full Court (Strickland, Watts & Austin JJ) said at [35] and following:
The central question raised by this appeal is how a judge takes into account the contributions of one party, found to have been made significantly more arduous by the conduct of the other, when assessing contributions under ss 79(4)(a)–(c) or ss 90SM(4)(a)–(c) of the Act. The answer is the primary judge must take a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder (citations omitted).
…
Although the use of the short-hand descriptor of a “Kennon claim” is not of itself erroneous, it is liable to induce error because the issue is not a stand-alone claim, but is rather integral to the entire process … Nor is it helpful to refer to the issue as a “Kennon adjustment” because that epithet invites treatment of the issue as an isolated claim for an additional share of the available property.
[5] Benson & Drury (2020) FLC 93-998.
It is necessary, in support of the contention that the contributions were rendered more arduous, to establish the incidence and effect of family violence and, as was said in Keating at [39], “an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make the relevant contributions”.
As to the nexus, in Benson & Drury the Full Court said at [49]:
[I]t should now be clear that the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties...
Following the assessment of contributions, the court is required to consider the matters set out at s 75(2) of the Act to the extent that they are relevant and significant to the case.
Finally the court is to take an overarching view and consider whether any adjustment at all, and the adjustment arrived at from the process of consideration, is just and equitable
THE PROPERTY
Identification of the property of the parties is the first step to the determination of a property adjustment claim.
As noted above, the purported property is largely constituted by the Stokerton Trust, the Q Trust, the Suburb P property and the parties’ superannuation. Each are dealt with below.
The Stokerton Trust
The Stokerton Trust is the product of the will of the husband’s late mother. It is the mode by which the bequest of half of her estate (other than the Q Trust) is distributed, with the husband as the putative recipient of that portion of the estate. He is the primary beneficiary under the testamentary trust, and is a trustee who holds the power to appoint and remove other trustees. By deed he appointed the wife a co-trustee. The wife and children remain beneficiaries, but a significant part of the powers of the trustees are conditioned upon receipt of the primary beneficiary’s consent.
The husband properly concedes that the Stokerton Trust should be treated as property of the marriage, given the parties’ effective control of the trust. He holds the power to appoint or remove the wife as a trustee. Together with the wife whilst she remains a trustee, they have the power to appoint the whole of the trust fund to the husband, consistent with his right to the due administration of the estate and with the fiduciary exercise by the trustees of their duties. This is particularly so where the trust is the vehicle by which the bequest of the husband’s mother’s estate is effected for his primary benefit.[6]
[6] See, for example. Kennon v Spry (2008) 251 ALR 257 at paragraphs [81] per French CJ and [137] per Gummow and Hayne JJ.
Further, given the wife’s lack of cooperation in preparing this matter for trial, on 27 April 2022, by court order, the husband was given control over the trust to, among other ends, prepare the accounts and tax returns of the trust without reference to the wife. This he has done.
Shortly prior to the commencement of the trial accounts were prepared by Mr T for the years 2018 to 2022.
These disclosed a current position for the trust, set out in the financial statements for the year ended 2022, as follows:
(a)Operating profit after tax of $15,645 (to which no beneficiary is presently entitled);
(b)Cash assets $198,014
(c)Noncurrent assets:
(i)Loans receivable from the parties - $1,045,714
(ii)Shares in listed companies - $349,880
(iii)Units in listed unit trusts - $75,376
(d)Liabilities of beneficiary loans:
(i)Ms B $33,282
(ii)Ms E $33,282
(iii)Ms D Stokerton $33,282
(iv)Ms G $33,282
(v)X $33,282
(vi)Ms F $33,282
(vii)Y $28,381
(viii)Z $12,558
(ix)No beneficiary presently entitled $109,964.
Net assets were calculated at $1,318,375.
Mr T calculated outstanding tax of $2,190, potential penalties of $5,430 and interest of about $800. This calculation was qualified on the basis that Capital Gains Tax (“CGT”) liabilities from previous realisation of trust assets for payments made to the parties have not been identified.
The loans from the children have been unchanged since 2017. He did not anticipate that the payments out to the children would result in any tax liability, on the assumption that any tax payable would have been payable in the year of the distribution.
A significant portion of the assets of the trust is made up of the loans to the parties. Although a portion of these were paid on the basis of court orders distributing property on an interim basis, they have been recorded in the trust as though they were loans made by the trust to the parties. This was explained to be a continuation of the previous accountant’s practice of recording payments to the parties, but also a process adopted given the pending resolution of the court proceedings.
Mr T calculated that the husband had been allocated funds by means of loan of $273,000, the wife $310,776.82, plus to the wife further drawings of $1,200 per fortnight totalling $96,000 for the period 31 December 2018 to 30 June 2022.
The mechanics of vesting the trust would be to cause the realisation of the assets of the trust, to cause the payments out of the loans to the children, the clear the existing loans to the parties and to calculate the tax consequences. The clearing of those loans could be effected by a paper distribution. It could be expected that the parties would each carry a tax burden caused by the clearing of the loans, but that the tax liability would be limited as the payments to the parties had previously been effected by a withdrawal of the existing capital of the trust held primarily as cash, and the relevant income tax is that already identified by Mr T as the tax liability of the trust. Mr T was unable to identify the extent of CGT liability that may have been incurred in the disposal of assets such as shares in order to make payments from the trust.
The realisation of the trust assets would then leave a balance for property settlement between the parties, assisted by any CGT relief that may be available as a result of being pursuant to court orders.
While Mr T considered that, from a taxation perspective, there was no particular disadvantage to the parties of vesting the trust at this point, he also accepted the wife’s proposition that the testamentary trust offered greater tax benefits through distribution to the children than offered by the Q Trust.
The Q Trust
The Q Trust was the subject of a bequest from the husband’s late mother to the husband and his sister Ms R. As a result of that bequest the corporate trustee is owned in equal shares by the husband and his sister. Determinations as to the trust and distributions from the trust are the subject of joint decisions by the husband and his sister. Historically distributions have been equally allocated between the sister and the combination of the husband, wife and their children. The sister has not taken the distributions and they are currently reckoned as loans from her to the trust. The assets of the trust comprise in large part two items of real estate, with income derived from each.
Whilst it may be anticipated that distributions will be made in the future in an equalising manner, the joint nature of those determinations means that there is a lack of capacity on the part of the husband to effect the appointment at his direction of the assets of the trust. This robs the trust of the character of property of the parties to the marriage, but leaves it, as conceded by the husband, as a relevant financial resource of the husband.
Each party has a loan to the Q Trust. For the husband, as identified in the accounts annexed to the affidavit of Mr T, it is $25,130, and for the wife $33,052. The husband seeks that the wife’s loan be allocated to him, and thereby the payment of that loan be something that he will need to secure with his sister, the co-trustee.
This appears sensible approach in terms of the mechanics of dealing with the loan. It is not suggested by the husband that he will be unable to secure the payment of the loan, and so it should not be something merely discounted from the pool. Rather it should still be taken into account in reckoning the distribution between the parties.
The accounts of that trust, as prepared by Mr T, also disclose that the husband’s sister, Ms R, was owed as at 30 June 2022 $230,444, by way of unpaid beneficiary entitlements.
The net assets of the trust, with the above liabilities largely offsetting the real estate owned by the trust, is reckoned at $100.
The Suburb P property
The parties purchased the Suburb P property in 1994. It was purchased in large part by savings and by a loan from the Q Trust that was subsequently repaid by the parties.
The parties remained living there until separation, at which time the husband left the property. The children have at times lived at the property post separation.
Although the husband provided property appraisals and asserted a value of $905,000, there is no admissible evidence as to value.
The wife has since separation lived in the unencumbered Suburb P property and it is held solely in her name. The wife asserts that the property is in need of some repairs.
Superannuation
The husband holds superannuation at Superannuation Fund 1 of $160,367.52 as at 14 June 2023. He asserts that the wife has a balance at Superannuation Fund 2 of $23,645, as at 31 December 2019. He does not concede that the balance in the wife’s account has remained static, saying that he does not know what it may now be. No disclosure of such was identified for the wife. Neither of these values is asserted to have been calculated in accordance with the Act.
The wife raised no dispute as to the superannuation held by the parties.
Miscellaneous
The husband asserts various amounts held in various accounts by the parties. In general they are not significant to the determination of a just and equitable property division, given their minimal nature.
The husband concedes that he holds $12,400 in an account from one of the partial property orders. The cash holdings of the wife remain unclear. However, neither party sought that the other account for the distributions that have already taken place, despite those favouring the wife.
Chattels
Each of the parties has the possession of a car, and various other chattels. To the extent that chattels are contained in the Suburb P property, the orders sought by the husband provide for the wife to retain such.
During the trial the wife identified that a number of sentimental items are currently held in a storage unit. The parties both sought that these be dealt with in a cooperative manner, the husband proposing that they take turns to pick items to retain.
Previous payments to the parties
Various payments have been made to the parties post separation from the Stokerton Trust, characterised as partial property settlements on the application of the parties, but provided to the parties as loans from the Stokerton Trust. It may be observed that the two characterisations are inconsistent with each other.
They are as follows for the husband:
(a)15 May 2020 - $100,000
(b)14 December 2020 - $50,000
(c)2 June 2021 - $85,000
(d)17 November 2021 - $3,500
(e)9 February 2022 - $35,000
For the husband they total $273,500.
For the wife:
(a)15 May 2020 - $137,276.82
(b)14 December 2020 - $50,000
(c)2 June 2021 - $85,000
(d)17 November 2021 - $3,500
(e)9 February 2022 - $35,000
For the wife they total $310,776.82
In addition, the wife has drawn regular payments of $1,200 per fortnight over a period of 31 December 2018 to 30 June 2022, totalling $96,000.
At present they are accounted for from the Stokerton Trust as though they were beneficiary loans from the trust, despite a significant proportion of them being made at the request of one or both of the parties as interim or partial property distributions.
Consistent with the above, the husband seeks that they be expunged as a part of the vesting of the Stokerton Trust. The position advocated by the husband was for the loans to be cleared in the vesting of the trust. Neither party sought that the loans to the parties be dealt with in any manner to impact the property division between the parties.
It remains unclear how the parties put these amounts to use, the parties having failed to disclose such in the trial, other than to some extent they have been used to meet legal fees.
Although these various amounts have been accounted for as loans, the parties did not treat them as such. No suggestion of the possibility of, or intention to cause the repayment of these amounts arose. There is no identified prospect for the parties together to repay these loans other than through a distribution from the trust. As far as can be seen, the parties have already treated these amounts as though they were distributions from the trust. Consistent with this it may be noted that the bulk of the payments were the result of orders of the court consented to by the parties to cause partial or interim property distributions to take place by payments out from the trust. However the trust may have accounted for the payments, the parties have dealt with them as distributions. The prospect of the resolution of the loans by a largely on-paper distribution from the trust to expunge the notional debts does not detract from this characterisation.
The outstanding loans, which it may be anticipated will be cleared through the vesting of the trust, will be treated in a manner consistent with the approach of the parties, that is, as though they are already characterised as distributions, observing that on the process proposed for the vesting of the trust that is what they will then technically become.
Neither party sought an adding back or reckoning of these payments, despite at least some of the amounts being used for, or directly referable to, the payment of legal fees. Given that they will be treated in this manner, any question of their impact on a distribution is answered by neither party seeking that they be treated as added back into the property to be distributed.
Contributions
The contributions of the parties fall into three major strands.
The first is in the contributions made through the various trust distributions to the husband, or through the Stokerton Trust or the Q Trust to the family members. The Q Trust lent monies to assist the parties, in addition to their savings, to purchase the family home. It made further distributions to the parties. It may be seen that the Stokerton Trust has formed the basis of the hundreds of thousands of dollars used by the parties post separation for various ends.
The second is the contributions made by each of the parties during the relationship.
The third is as to contributions following separation.
The husband engaged in work for the majority of the relationship, the children were homeschooled, the parties shared efforts and responsibilities in attempting to promote the welfare of the family. The degree to which they were effective in so doing is uncertain. Despite differing roles their contributions across this time may be seen as equal, but for a period of time when the father was imprisoned toward the end of the relationship.
For a period of several months the father was incarcerated following offending against adults at work. For this period of time it should be inferred that the burden taken on by the wife was significantly greater than that of the husband.
Following separation the children moved from the primary care of the mother to that of the father, and then on to live with their sister Ms D Stokerton. This occurred in the context of contested welfare proceedings, then contested family law proceedings.
In late 2018, the children were removed by the welfare agency from the care of both parents, gradually returning to the care of the father by late 2020 when the welfare proceedings were ended. This marked a period of stronger contributions by the husband.
In late 2021 the children, who then remained in the care of the father, entered the full time care of their sister Ms D Stokerton, and have remained in her care since. Ms D Stokerton now has sole parental responsibility and the sole care of the children who have not yet reached 18 years of age. Neither parent has spent time with the children since November 2021.
No clear contribution to the well-being of the children has been made by either party since this time.
All the while the wife has remained in the unencumbered family home while the husband has found alternate accommodation, including in a mobile home.
The husband claims that his contributions were rendered significantly more arduous by family violence perpetrated by the wife.
The husband gave little particularisation of how this was so. In describing potential family violence, the husband claims that the wife was violent to the children in the administration of chastisement. He however claims to have not known about such until 2018, about the time of separation. It does not thereby appear that this was a feature that rendered the husband’s contributions significantly more arduous, he claiming to have been oblivious to it.
The husband asserts that the wife was verbally abusive to him, and dominant over him. He describes that the wife was non-compliant with directions and orders in the litigation process, and with processes regarding sorting out the financial arrangements of the parties. Little description of the acts underlying these assertions was given, save insofar as they related to the wife’s resistance to the court processes.
The husband has not presented facts persuasive of his contention that his contributions were rendered significantly more arduous by the wife’s engaging in family violence.
The husband made a novel claim that his parenting litigation is a relevant contribution. He asserted, devoid of reference to any supporting authority, that his prosecution of a parenting case is a relevant contribution. He styled his litigation as in support of keeping the children away from the mother.
The result of the parenting litigation is that neither parent will spend time with the children, both being injuncted not to. Admittedly, there is an exception in the case of the father where contact is wanted by the children and agreed to by their sister Ms D Stokerton who now holds sole parental responsibility for them. The ultimate outcome, determined in the absence of the wife, was generally agreed to by the husband shortly prior to the trial, and wholly agreed by him at the trial. His earlier case had been that the children live with him.
I am unable to discern how the husband’s litigation of the parenting proceedings should be seen as a relevant contribution. Even if it were able to be characterised as capable of being a relevant contribution, it is not one capable of bearing any weight.
Financial contributions significantly favour the husband, the parties’ assets and lifestyle being significantly supported by trust distributions sourced ultimately from the husband’s family.
No significant differential is apparent in respect of non-financial contributions engaged in by the parties through their long relationship, although after the end of their relationship their contributions, particularly in respect of the children favoured each at different times.
Section 75(2) considerations
Little attention was focussed on this aspect of the case.
Neither party impresses as having robust prospects in securing future income.
The father has predominantly engaged in outdoor work and caring for others. The prospect of future care work may be anticipated to be foreclosed by reason of his criminal conduct. He is now aged almost 56 years old. He contends, with little supporting evidence, that he suffers from PTSD.
It may be accepted that at least in the recent past he has struggled with significant mental health challenges. At present he describes himself as self employed and working on an as needs basis, estimating his income at approximately $639 per week. He accepts that the wife, who was not employed during the relationship, and is not currently employed, functioned as a stay at home mother.
The wife’s future prospects appear even more parlous than the husband’s future prospects. His capacity to derive an income appears more robust than hers. Whilst he has limited work prospects, it appears that the wife will have to start from scratch, which it can be expected will be no easy task given her age.
Neither party has the care of any of the children, nor is it suggested that either has formed a new relationship or cohabits with another. On the evidence, each has, until separation lived a frugal life, which appears to be what they will each be consigned to in the future. The husband is able to, at present, receive support from a government benefit. As far as the evidence reveals, he has a more significant accumulation of superannuation than does the wife.
Further, the husband will still have a limited financial resource in terms of the Q Trust. This should be considered as limited as, although the trust appears to consistently derive and distribute income, the debt it owes to Ms R almost entirely encompasses the assets of the trust.
The wife has a significant creditor, in the form of her former lawyers.
DISCUSSION AS TO PROPERTY ADJUSTMENT
It is just and equitable to adjust the parties’ property interests following the ending of their cooperative financial arrangements that have enmeshed their efforts in supporting the family, financially and otherwise. In doing so it is also necessary to bring their financial interaction to an end, in a manner that does not require the cooperation of the wife, given her apparent opposition to the ending of financial relations.
Through the parties’ lengthy relationship, although they each had different roles, they have each applied considerable efforts to contribute to the family.
At later times, toward and following the end of the relationship, the non-financial contributions, and contributions to the welfare of the family of each of the parties has outstripped the other’s, for example when the husband was in gaol, when the wife had the sole care of the children, and when the husband had the sole care of the children. These may be taken to be balanced out.
The major differential between the parties in terms of contribution arises from the flow of resources from the husband’s family, comprised by distributions, over an extended period of time, from the Q Trust and the Stokerton Trust. It was such that assisted in the acquisition of the family home, that was drawn upon through the relationship, and that has been drawn on heavily by each of the parties following their separation. This aspect of the parties’ finances weighs significantly in favour of the husband, such that in combination the husband’s contributions should be seen to outweigh those of the wife, by a factor of 60-40, weighted by the ongoing distributions from the trust that have supported the family, and the more recent distributions of the trust to each party, which were directed more favourably to the wife. That balance is also supported by the ongoing benefit the wife has enjoyed of the occupation of the unencumbered home post separation.
Given the assessment of the parties’ positions going forward, consideration of the s 75(2) factors points to an adjustment back in favour of the wife. Whilst neither party appears to have strong prospects, the wife’s position appears particularly precarious. This requires assessment in the light of the significant imbalance in the parties’ superannuation, a result flowing from the differing roles of the parties during their relationship, as there is no scope for an adjustment balancing of the parties’ superannuation interests.
The ultimate adjustment will effect a 55-45 division favouring the husband. The long term entwining of their efforts, their poor future prospects, and the greater financial contributions of the husband, mean that such a result is just and equitable.
The precise dollar figures are unable to be determined in advance (given the uncertainties associated with the vesting of the Stokerton Trust), although it appears likely that not only will the parties reap a net dividend from the sale of the home, but also that there will be a positive net result for them from the vesting of the Stokerton Trust.
CONCLUSION AS TO PROPERTY DIVISION
Orders will be made for the vesting of the Stokerton Trust, for the debts of the trust to be paid out, the debts of the parties to the trust to be expunged by distribution, and for any balance to be divided 55-45 in favour of the husband. The orders will exclude the wife from this process given her opposition, and a previous lack of cooperation.
Similarly, the husband will be appointed trustee for the sale of the family home.
Orders will be made to require the wife to vacate the home, delivering vacant possession to the husband for the purpose of sale. Although the orders pursued by the husband required compliance by the husband with recommendations from an unknown real estate agent, such an order should not be made as it leads to an ill defined obligation. Rather, it is appropriate that the husband seek appropriate advice, but the determination of what steps are required for the sale, and the terms of the sale, should ultimately be matters for him. He has a strong interest in reaping a dividend from the sale, and there was no matter suggestive that he would discharge his obligations as trustee for the sale of the property in other than good faith.
Although the husband sought that a warrant issue to deliver vacant possession, such will not be given at this stage. Whilst it may be that the wife does not cooperate with delivering vacant possession, mechanisms for the enforcement of those obligations, including mechanisms for the issue of a warrant are catered for within the relevant rules of court.
The net proceeds of sale will also be divided 55-45 to the husband, but with an additional cash distribution to the wife of $59,000 to take into account the imbalance in superannuation, and to cause an overall 55-45 distribution.
Further, the loan from the wife held by the Q Trust will be assigned to the husband, with the loans from the husband and the wife to that trust being notionally divided 55-45 to the husband, and a payment reflecting the wife’s share of $26,000 being made to the wife from the proceeds of the sale of the Suburb P property.
THE THIRD PARTY CLAIM
The second respondent intervened pursuant to s 92 of the Act and sought orders that its fees be paid from the wife’s share of any property distribution prior to the wife receiving her share. It sought that the fees be paid of $224,158.16 along with interest, but conceded that the quantum could be subject to adjustment should I consider that the amount was not reasonable and proportionate.
The position of third party creditors is a necessary consideration in making an adjustment pursuant to s 79, as indicated by s 75(2)(ha) which requires consideration to be given to:
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant
Here, however, the second respondent made no submissions that the debt owed to it should impact the adjustment pursuant to s 79, and explicitly eschewed such an effect, restricting its claim to whatever property was distributed to the wife pursuant to s 79 orders.
In Commissioner of Taxation v Worsnop (2009) 40 FamLR 552 at 568 the Full Court observed that:
... it is well-established that under s 79 the court may make orders within a s 79 order, for payment by a spouse, or by both spouses, of a debt to a third party, whether that third party has intervened or not...
This position was confirmed by Cronin J in Martin v Martin (2016) 54 Fam LR 548 at 560 where his Honour observed:
In my view, the ability of the Court to order a payment by one party directly to a creditor ... lies in s 79 (see Kliman). A similar position was adopted by the Full Court in In the Marriage of D and M Zdravkovic (1982) 8 Fam LR 97 where the Full Court held that once it was clear and beyond doubt that a debt was owing to a third person, and that it would in all probability be enforced, there are clearly appropriate cases where as a part of the adjustment of the financial rights of the parties, the order could be made for the payment direct to the creditor.
How is the debt established?
The asserted debt relates to unpaid fees for the professional services of the second respondent who previously acted for the wife.
The second respondent relied upon an affidavit of Ms L filed 17 March 2022 and an affidavit of Mr N filed 13 July 2023. Ms L was the solicitor with the carriage of the wife’s matter, whilst Mr N is a current principal of the firm.
The firm has previously received, pursuant to order, the sum of $35,000, and now claims, inclusive of interest, the sum of $238,093.86.
It was uncontroversial that the wife retained the second respondent to represent her in these proceedings for a period during 2021 and 2022.
On 16 August 2021 the second respondent executed a fee agreement and sent same to the wife. It then estimated legal costs of $117,517.87.
The wife, by a deed of charge executed 21 September 2021, gave as security for payment of legal fees, counsel’s fees and disbursements:
(a)Her interest in the Stokerton Trust;
(b)Her interest in the Q Trust;
(c)Settlement funds including interim settlement funds;
(d)Her interest in the Suburb P property.
On 2 December 2021 the second respondent issued an amended agreement for legal services, executed by Ms L, estimating legal costs of approximately $307,400.
No copy of either agreement executed by the wife was provided, although the wife did not dispute either of the agreements.
Invoices, itemised as to the work undertaken and containing a notice setting out the wife’s rights, including her rights to challenge the accounts were rendered by the second respondent as follows:
(a)16 November 2021 (4 invoices) - $136,231.16
(b)9 February 2022 - $87,690.00
(c)3 March 2022 - $35,237.00
Interest was calculated by Mr N at $13,935.70.
Ms L described that the invoiced amounts represented a discount of $93,712.80 from the calculated Work In Progress amounts, representing a discount of approximately 30 per cent.
The wife cross-examined Ms L, including regarding having made complaints as to Ms L’s conduct. Ms L denied awareness of such. On being further questioned as to the wife having expressed concerns to Ms L two to three times per week, Ms L described having received thousands of emails from the wife, some of which were abusive. The wife then apologised to Ms L for her disrespect of Ms L and purported to acknowledge Ms L’s feelings of abuse.
Ms L described that the retainer was ended following her insistence that to continue acting she required the wife to undertake a psychological assessment, a step that the wife was unwilling to undertake. Ms L explained that this position was taken due to her concerns as to the wife’s capacity.
Although the wife disputed any liability to the second respondent, she did not appear to take issue with the second respondent having undertaken the work claimed. She mused during submissions, without committing herself, that perhaps the second respondent could receive $100,000.
The wife made no complaint as to the accounts to the Victorian Legal Services Commissioner, nor sought a costs assessment from the Supreme Court Costs Court.
The charging of costs by a legal practice is governed in this instance by the Part 4.3 of the Legal Profession Uniform Law as applicable in Victoria by virtue of the Legal Profession Uniform Law Application Act 2014 (Vic).
Section 172 provides that costs are to be no more than is fair and reasonable in all the circumstances, are to be proportionately and reasonably incurred, and proportionate and reasonable in amount.
A costs agreement is prima facie evidence that the legal costs disclosed are fair and reasonable if the relevant provisions have been complied with. No suggestion was made that such was not the case here, and the evidence annexed by Ms L demonstrated that the necessary information, as identified by s 174, was provided to the wife in relation to both the manner of charging and an estimate, then an amended estimate of legal costs, along with information as to the wife’s rights to challenge the costs rendered by the second respondent.
Although neither of the provided agreements was executed by the wife, it should be noted that s 180, which relates to the making of costs agreements, provides that an agreement may consist of a written offer (as here) which is accepted in writing, or accepted by other conduct. The continued engagement of the firm by the wife, and her entry into the deed sufficiently supports the contention that the costs agreement was entered into even absent the provision of an executed copy. This conclusion is fortified by the lack of challenge by the wife to the agreement asserted by Ms L.
The evidence of Ms L demonstrated that, prior to commencing proceedings to recover the costs from the wife in this court, accounts were rendered pursuant to s 194.
No application was made for a costs assessment pursuant to s 198, nor was action taken pursuant to Chapter 5 before the Supreme Court of Victoria.
This leaves a position that the costs are governed by the contract effected through the costs agreement. Further there is a prima facie position that the rate of the costs charged pursuant to that agreement meet the base requirement that they be fair and reasonable. Finally, no challenge has been made to the work asserted to have been undertaken by the firm.
This is sufficient to establish the debt against the wife asserted by the second respondent.
Conclusion as to the second respondent’s claim
The wife is indebted to the second respondent in the manner asserted by them, to the amount of $238,093.86.
It is appropriate that this amount be paid to the second respondent from proceeds otherwise payable to the wife, prior to her receipt of such and orders will be made to effect such a result.
I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 21 August 2023
ANNEXURE
Orders sought by the applicant
O STREET, SUBURB P
(1)That within thirty (60) days of the date of these Orders the First Respondent is to vacate the property situate at O Street, Suburb P (“the Suburb P property”).
(2)That in default of the First Respondent vacating the Suburb P property pursuant to Order 9, pursuant to Rule 11.56 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), a warrant of possession issue and the Marshal and all officers of the Australian Federal Police and of the Police Force of the State of Victoria for the purpose of giving effect to this order, requiring the First Respondent, MS C STOKERTON, to vacate the property situate at O Street, Suburb P in the state of Victoria are directed with such assistance as they may require and if necessary by force to enter upon the property being the land in certificate of title volume … folio … and cause the First Respondent, MS C STOKERTON and any other persons present to vacate the property and vacant possession of the land to be given to the Applicant, MR STOKERTON.
(3)The enforcement officer have the following powers:
(a)To enter and search the Suburb P property;
(b)To seize and secure the Suburb P property;
(c)To eject the First Respondent her servants or agents from the Suburb P property;
(d)To take possession of, and secure against any interference, the Suburb P property; and
(e)To take possession of any keys and remote controls for the Suburb P from the First Respondent.
(4)That within seven (7) days of the First Respondent vacating the Suburb P property (either by reference to paragraph 1 or 2 herein) the First Respondent do all acts and things and sign all documents necessary to transfer to the Applicant the Suburb P property for the purposes of sale and the Applicant hold the Suburb P property on trust for the First Respondent.
(5)That if the First Respondent fails to sign the transfer to the Applicant as foreshadowed by Order 4 herein, then a Registrar of the Court be appointed pursuant to section 106A of the Act and an Affidavit by the Applicant’s solicitor be sufficient evidence for this purpose.
(6)That for the purpose of Order 5 herein and to give effect to Order 5 herein, the First Respondent shall be excused from providing documents verifying her identity and that a certified copy of these Orders be attached to a client authority or any other documents required on behalf of the First Respondent to affect the transfer of the Suburb P property to the Applicant via PEXA and in accordance with the requirements of ARNECC (Australian Registrars National Electronic Conveyancing Council).
(7)That following the transfer of the Suburb P property to the Applicant, he is to forthwith place the Suburb P property on the market for sale on such terms and conditions as agreed to by him and the First Respondent and in default of agreement:
(a)The Applicant and First Respondent follow all recommendations of the selling agent as to any works that may be reasonably required to prepare the Suburb P property for sale;
(b)In the event that the Applicant and First Respondent cannot agree on a reserve price, it be as determined by the selling agent;
(c)The Applicant and First Respondent shall:
(i)Co-operate with and follow all reasonable directions of the nominated real estate agent in relation to the conduct of the sale; and
(ii)Keep each other informed of all communications with the real estate agent and/ or any prospective purchaser.
(8)That the First Respondent be restrained by injunction from interfering in any way with the sale of the Suburb P property including but not limited to:
(a)Returning to the Suburb P property; and
(b)Being within 200m of the Suburb P property on the day of the auction or the day of any inspection of which she is notified in writing at least twenty-four (24) hours prior.
(9)That upon settlement of the Suburb P property, the proceeds of sale are to be applied:
(a)First, to pay the costs, commissions and expenses of sale;
(b)The balance remaining thereafter to achieve a division of the net assets:
(i)65% to the Husband; and
(ii)35% to the Wife.
STOKERTON TRUST
(10)That the Applicant be authorised to pay from the Stokerton Trust any sums due on the next tax assessment for the Stokerton Trust.
(11)That within fourteen (14) days of the date of these Orders, the Applicant and First Respondent do all acts and things necessary including but not limited to signing any documents requested of them in order for the Stokerton Trust to be vested and:
(a)Any net surplus after the payment of tax liabilities to the trust, the Applicant or First Respondent arising from or out of the vesting such tax liabilities to be apportioned equally between the Applicant and First Respondent who will cause the same to be paid from any surplus distributed be apportioned 65% to the Applicant and 35% to the First Respondent; and
(b)Any net shortfall after the payment of tax liabilities to the trust, the Applicant or First Respondent arising from or out of the vesting such tax liabilities to be apportioned equally between the Applicant and First Respondent who will cause the same to be paid from any surplus distributed be apportioned 50% to the Applicant and 50% to the First Respondent.
(12)In the event that the First Respondent fails to comply with paragraph 11 herein, then a Registrar of the Court be appointed pursuant to section 106A of the Act and an Affidavit by the Applicant’s solicitor be sufficient evidence for this purpose.
(13)That the First Respondent and Applicant each be solely liable for and indemnify the other with respect to the tax consequences that may arise from the partial property settlements paid to them from the Stokerton Trust and the vesting of the Stokerton Trust pursuant to these Orders.
Other
(14)That the First Respondent does and hereby does assign to the benefit of the Applicant all monies standing to her credit in the books of account of Q Trust
(15)That save as provided for by these orders the First Respondent retain for her sole use and benefit and to the exclusion of the Applicant:
(a)All her bank accounts;
(b)Her Motor Vehicle 1;
(c)Her partial property settlements;
(d)Her chattels and personal effects; and
(e)Her superannuation.
(16)That save as provide for by these Orders the Applicant retain for his sole use and benefit and to the exclusion of the First Respondent:
(a)All his bank accounts;
(b)His interest in the Q Trust;
(c)His motor vehicle;
(d)His chattels and personal effects; and
(e)His superannuation.
(17)That unless otherwise specified in these Orders and save for the purposes of enforcing any obligations arising under these Orders or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of these Orders;
(b)Insurance policies, including the parties’ respective entitlements to any U Insurance payments, remain the sole property of the owner named therein;
(c)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; and
(d)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
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