Swale and Swale And Anor

FAMILY COURT OF AUSTRALIA

SWALE & SWALE AND ANOR [2010] FamCA 298

FAMILY LAW – PROPERTY – Justice and equity of orders made between the wife and the estate of the husband

Family Law Act 1975 (Cth) Part VIIIAA, s 75(2), s 79, s 106B
Succession Act 1981 (Qld)

Spry v Kennon & Ors [2008] HCATrans 130

APPLICANT: Ms Swale

RESPONDENT: Mr Swale

SECOND RESPONDENT: Mr Latona

FILE NUMBER: BRF 3761 of 2004

DATE DELIVERED: 1 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 1 March 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Greer

SOLICITOR FOR THE RESPONDENT: Mr Hartley

Orders

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3761 of 2004

MS SWALE

Applicant

and

MR SWALE

Respondent (Deceased)

MR LATONA

Second Respondent (Executor of Deceased Estate)

EX TEMPORE

REASONS FOR JUDGMENT

1. The orders sought to be made in this case involve the applicant wife and a solicitor, Mr Latona, who acts as the executor of the husband’s estate.

2. The husband and wife commenced cohabitation in 1976, married in 1978, and separated finally in 2003.  The relationship was thus a long one and produced four children, one of whom is still a minor.

3. The husband remarried in August 2005 and died only some two months thereafter.  The husband’s new wife had a child from a previous relationship.  The husband’s new wife commenced, after his death, proceedings pursuant to the Succession Act 1981 (Qld) in respect of an asserted entitlement by her in respect of the estate. That matter has now resolved between all of the parties.

4. What remains here is a determination about the justice and equity of orders made between the wife and the estate of the husband.

5. The parties’ property, as that expression is used in section 79 of the Act, includes a number of inter-related corporate and trust entities.  That presents significant issues for the parties and this court which have been dealt with via a lengthy process of negotiation involving the parties’ legal advisers, specialist taxation legal advisers, and specialist accountancy advisers.

6. The minutes of consent arrived at between the applicant and the estate reflect that complexity and are based upon that advice.  The orders have a number of unusual features about them.

7. First,…