Thukral & Trishna (No 3)
[2022] FedCFamC1F 938
Federal Circuit and Family Court of Australia
(DIVISION 1)
Thukral & Trishna (No 3) [2022] FedCFamC1F 938
File number(s): SYC 3986 of 2019 Judgment of: ALTOBELLI J Date of judgment: 1 December 2022 Catchwords: FAMILY LAW – PROPERTY – Where the parties were ordered to submit their proposed orders reflecting an alteration of property interests as to 60 per cent to the husband and 40 per cent to the wife – Where a super-splitting order is proposed to be made in relation to a United Kingdom pension – Where neither party’s proposed orders are appropriate. Legislation: Family Law Act 1975 (Cth) s 79
Matrimonial and Family Proceedings Act 1984 (UK) ss 12, 13, 15, 20
Cases cited: Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143; [2003] FamCA 395
Thukral & Trishna (No 2) [2022] FedCFamC1F 698
Division: Division 1 First Instance Number of paragraphs: 30 Date of last submission/s: 28 October 2022 Date of hearing: Determined on the papers Place: In Chambers Solicitor for the Applicant: Sharah & Associates Solicitors And Conveyancers Solicitor for the Respondent: Acorn Lawyers ORDERS
SYC 3986 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR THUKRAL
Applicant
AND: MS TRISHNA
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
1 December 2022
THE COURT ORDERS THAT:
1.Within 42 days of the date of these orders, each party is to submit to chambers his/her amended proposed orders or consent orders reflecting an alteration of property interests as to 60 per cent to the applicant husband and 40 per cent to the respondent wife.
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 the pseudonym Thukral & Trishna has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
BACKGROUND
On 16 September 2022 I published reasons for judgment in the financial dispute between the applicant husband (“the husband”) and the respondent wife (“the wife”) and made the following orders:
1.Within 21 days of the date of these orders, the parties submit to chambers an agreed joint minute of order reflecting an alteration of property interests as to 60 per cent to the applicant husband (“husband”) and 40 per cent to the respondent wife (“wife”) as outlined in the reasons for judgment delivered today.
2.In the event that the parties fail to reach an agreement pursuant to Order 1, then within 28 days of the date of these orders, each party is to submit to chambers his/her proposed orders reflecting an alteration of property interests as to 60 per cent to the husband and 40 per cent to the wife as outlined in the reasons for judgment delivered today.
THE COURT NOTES THAT:
A.The Court has today determined that an alteration of property interests as to 60 per cent to the husband and 40 per cent to the wife is just and equitable.
My reasons for judgment were published as Thukral & Trishna (No 2) [2022] FedCFamC1F 698 (“my previous reasons").
I was satisfied that an alteration of property interests between the parties as to 60 per cent to the husband and 40 per cent to the wife was just and equitable. At [53]–[61] of my previous reasons, I discussed some of the issues that might arise in implementing the proposed adjustment and making such an order. Some of the property is in the United Kingdom, and some of it in Australia. In particular, the most valuable asset is a pension that the husband owns with Bank 1 in the United Kingdom (“United Kingdom pension”). There was no evidence about the nature of the superannuation, and the value was agreed. At several points during and after the hearing I mentioned to the legal representatives of the parties that there could be complexity associated with splitting this personal pension but, at all relevant times, and having foreshadowed a potential problem, I left it to the parties’ legal advisers to ascertain whether there was a problem, and if so, how it should be overcome.
In accordance with the orders I made on 16 September 2022 both the husband and the wife provided minutes of proposed orders, ostensibly to reflect the alteration of property interests contemplated in my previous reasons. The husband’s proposed minute is reproduced in Schedule A (“husband’s proposed minute”) and the wife’s proposed minute is reproduced in Schedule B (“wife’s proposed minute”) of these reasons.
These reasons for judgment explain why the Court has declined to make either of the orders proposed by the parties and, further, why the Court does not consider itself to be in a position where it can craft orders to reflect the intended alteration of property interests without further input from the parties.
THE AB STREET PROPERTY
At [54] of my previous reasons, dealing with the property at AB Street (“the AB Street property”), the Court held that the wife is to receive the net sale proceeds subject to establishing how any tax, including capital gains tax, is quantified. The intention was that she receive the net sale proceeds after payment of all costs and disbursements including anticipated capital gains tax. Thus, the fund to meet any such capital gains tax liability of either party was the sale proceeds of this property. Neither of the proposed minutes address this satisfactorily.
The husband’s order is unsatisfactory because it proposes a 60:40 split of the sale proceeds in favour of the wife, which is clearly inconsistent with my previous reasons for judgment. The wife is to receive the entirety of the net sale proceeds. However, his orders seem to recognise the possibility of a capital gains tax liability and proposes that a sum of money be retained from the sale proceeds for this purpose. This proposal is satisfactory, in general terms. His orders also correctly anticipate that there might be expenses incurred before the sale and thus need to be met in some fashion. He proposes that it be met out of a portion set aside from the Acorn Lawyers’ trust account. In principle, there should be nothing controversial about this. With respect to the parties, however, one would have thought that with some reasonable diligence they should be able to ascertain even now what their potential capital gains tax liability is, as well as what might be the expenses relating to the sale that need to be paid in advance.
The wife’s order is satisfactory particularly insofar as it recognises the potential for the property to be sold for a price greater than the value established on the balance sheet found at [30] of my previous reasons. Thus, the husband receives the benefit of 60 per cent of the amount by which the gross sale proceeds exceed £200,000. The wife’s order also recognises the need to set aside a fund to pay capital gains tax but does not suggest the source.
monies held in acorn lawyers’ trust account
The division of the net sale proceeds of the former family home, presently held in trust by Acorn Lawyers, is dealt with at [55] of my previous reasons. The Court found that the sale proceeds should be divided as to 55 per cent to the wife, and the balance to the husband.
The husband’s proposed minute seem to suggest that it is only after all of the property in the United Kingdom has been dealt with, including his pension, that the Australian assets should be dealt with. Indeed, he contemplates the submission of a further agreed minute of order, or that the parties be granted liberty to apply on short notice for further orders.
The wife proposes an immediate division but on the basis that $20,000 be set aside for the sole purpose of providing a fund for the payment of legal costs associated with splitting the husband’s United Kingdom pension, but thereafter she receive 55 per cent, and the husband the balance.
Some of the difficulties associated with these proposals will shortly become apparent. It is important for the parties to remember, however, that this Court makes one order under s 79 of the Family Law Act 1975 (Cth) (“the Act”) altering the property interests of the parties, not a series of orders: Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143 at [48].
The HUSBAND’S AUSTRALIAN SUPERANNUATION FUND
The husband’s Australian superannuation fund is discussed at [56] of my previous reasons. The wife is to receive a $40,000 superannuation split in her favour. The husband’s proposed minute, consistent with his proposal about the net sale proceeds of the former family home, was that this should be postponed. The wife proposed an immediate superannuation splitting order using a base amount of $40,000.
The Court accepts that at one level the implementation of the 60:40 split contemplated by my previous reasons can only be finalised once there is clarity in the realisation and splitting of the United Kingdom assets. At another level, however, the significant financial disparity between the parties also needs to be recognised in implementing the proposed alteration of property interests.
The husband’s united kingdom pension
The husband’s United Kingdom pension is the most valuable asset of the parties. The competing proposals in relation to the pension are discussed at [57]–[59] of my previous reasons. The wife wanted $400,000 and the husband proposed $188,000 by way of splitting. The Court contemplated that the wife would receive a splitting order as to 40 per cent of the pension fund.
The husband’s proposed minute contemplates a 40 per cent split to the wife, but curiously the wife’s proposed minute refers to $253,347 (approximately 31 per cent).
The orders proposed by both parties seem to reflect advice received about how any such splitting order would be implemented. Both parties contemplate that they would instruct a lawyer to prepare and lodge a consent application and permission to apply application in the United Kingdom Court (“UK Court”) which, if granted, would have the effect of legally splitting the husband’s entitlement as contemplated by the parties and this Court’s judgment.
This Court is concerned, however, that it should not make an order under the Act where it cannot be reasonably satisfied that it will be effectuated in a UK Court. The difficulty that it perceives is as follows.
The relevant legislation is the Matrimonial and Family Proceedings Act 1984 (UK) (“UK Act”) and the relevant sections are set out below.
Section 12 is entitled “Applications for financial relief after overseas divorce etc.” and permits an application to be made for an order for financial relief where a marriage has dissolved in an overseas country. It would permit the application contemplated in the present case.
Leave of the UK Court would be required under s 13 of the UK Act.
However, under s 15(1)(a) and s 15(1)(b) of the UK Act, the UK Court only has jurisdiction if either of the parties to the marriage was domiciled or habitually resident in England and Wales at the relevant time. This is clearly not the case in the matter before this Court.
Under s 15(1)(c) however, the UK Court has jurisdiction if either or both of the parties to the marriage had, at the date of the application for leave, a beneficial interest in possession in a dwelling-house situated in England or Wales which was at some time during the marriage a matrimonial home of the parties to the marriage. It is not clear whether the parties contend that this applies to them.
Even if it does, however, s 20 of the UK Act entitled “Restriction of powers of court where jurisdiction depends on matrimonial home in England or Wales” potentially presents an obstacle. The Court’s powers are limited as identified in s 20(1) and s 20(2).
In short, this Court is firstly concerned that the UK Court would not have jurisdiction to entertain the application for a splitting order in circumstances where neither party is resident to or domiciled in England or Wales. Moreover, even if jurisdiction could be established based, presumably, on the ownership of the AB Street property, the restrictions that are contemplated by s 20 of the UK Act might potentially limit the scope of any splitting order that can be made.
It is not clear to the Court that the parties have considered the above issues.
If they have not, they should earnestly consider them.
If they have, and are satisfied that the UK Court does have jurisdiction to entertain the application for the splitting order of the pension fund, then they need to address the other issues identified above in relation to the proposed orders.
These are complex matters for the parties to consider and address with the benefit of legal advice.
The parties are to file further draft proposed orders to my chambers, or consent orders.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 1 December 2022
SCHEDULE AMinute of Orders Sought By Applicant Father
1. That UK property matters be dealt with first and that all UK Assets be divided in the ratio of 60:40 in favour of the applicant Father.
UK Property
2. That within 28 days from the date of these Orders the parties do all things necessary to list the property situated at and known as AB Street, City AC in the United Kingdom for sale and the parties shall sign all documents necessary with an agreed listing agent to list the property for sale for an agreed figure of not less than 200,00 UK Pounds and the proceeds of sale distributed as follows:
2.1.The balance of principal and interest owing in respect of any mortgage secured upon the said property;
2.2.Agent’s commission on the sale;
2.3.Legal costs and fees relating to the sale and discharge of any mortgage;
2.4.Adjustment of rates and taxes;
2.5.All other expenses which may have been reasonably incurred in respect of such sale
2.6.The balance to be distributed to parties in the ratio as per Order 1 within 7 days of the settlement of The Property
3. To give effect to Order 2 for the sale of the AB Street property the following shall occur sequentially:-
3.1.That as to the appointment of a real estate agent (“the agent’)
3.1.1.That within 14 days from the date of the Orders, the Mother shall write to the Father and nominate three (3) real estate agents for the Father to select from; and
3.1.2.Within 7 days of receipt of the Mother's communication in Order 3.1.1 herein, the Father shall respond to the Mother in writing, selecting one of the three (3) nominated real estate agents; and
3.1.3.The Father and Mother shall thereafter sign all such documents as may be required by the agent to give effect to the appointment.
3.1.4.If the estate agent requires any upfront payment for marketing The Property or obtaining any reports like EPC Certificates etc. then this money is to be sent to them from the monies in the Acorn Lawyers Trust Account from the sale of the former matrimonial home situated at F Street, Suburb G (“Trust Account”)
3.2.That as to the appointment of a solicitor/conveyancer
3.2.1.That within 7 days from the appointment of the real estate agent, the Father shall write to the Mother and nominate three (3) solicitor/conveyancers for the Mother to select from; and
3.2.2.Within 7 days of receipt of the Father's communication in Order 3.2.1 herein, the Mother shall respond to the Father in writing, selecting one of the three (3) nominated solicitor/conveyancers; and
3.2.3.The Father and Mother shall thereafter sign all such documents as may be required by the solicitor/conveyancer to give effect to the appointment.
4. That the parties meet the costs of any CGT in accordance with their respective liability based on their taxable income or any other taxation liability arising from the sale of AB Street, City AC, following any liability calculation made by HM Revenue and Customs in the United Kingdom and that each party shall pay their respective liability.
5. Within 7 days of the settlement of The Property at AB Street, a sum of $20,000 each is to be distributed to both parties from the Trust Account held by Acorn Lawyers with ANZ Bank a/c …94. This amount is to be counted as prior allocation when the balance of the Australian Property matters are dealt with. This will allow the parties to pay their UK tax liabilities with respect to Order 4 and any fees due to The Trustee of the UK Pension as per Order 6.3.2
UK Pension Splitting
6. That the parties are to do all acts and things necessary, including executing all documents required to give effect to the following:-
6.1.Within 7 days from the date of these Orders, both parties shall jointly instruct Ms AE of AF Lawyers, to prepare and lodge a Consent Application and Permission to Apply Application that complies with the requisite legislation, which will have the effect of creating an entitlement to the Mother out of the Father's interest in AG Trustees Ltd managed by Bank 1 in the United Kingdom, of 40% and that there be a corresponding reduction in the entitlement Mr Thukral would have otherwise had; and
6.2.To Facilitate Order 5.1, Acorn Lawyers shall act as Instructing Solicitors and AF Lawyers as their Agent Solicitors
6.3.To Facilitate Order 5:-
6.3.1.The legal costs associated with Order 5 herein shall be paid from the funds retained in the Trust Account;
6.3.2.Any fees payable to the UK Pension Trustee be borne equally by both parties. These are to be paid in Pounds Sterling and can be paid from their share of the Pension Fund itself, if allowed by the Trustee, or by the parties themselves.
Australian Assets
Upon the satisfactory conclusion of UK property matters outlined in Orders 2-5, the parties either:-
7. Submit an Agreed Minute of Orders with regards to the balance of the property matters relating to the distribution of Trust Account and for any Super Splitting orders in Australia, OR
8. Be at liberty to apply on short notice for further orders to distribute the balance of the Property in keeping with Order 1 of Orders dated 16/09/2022
Chattels, Liabilities and other Property
9. That subject to the Orders herein, the Applicant shall retain all interest in and entitlement to:-
9.1.All personal property and motor vehicles now in his respective possession or control
9.2.All shares, debentures, units in unit trusts, bank accounts, building society or credit union accounts standing in his sole name.
9.3.All interests in life insurance policies and superannuation funds standing in his sole name
10. That subject to the Orders herein, the Respondent shall retain all interest in and entitlement to:-
10.1.All personal property and motor vehicles now in her respective possession or control
10.2.All shares, debentures, units in unit trusts, bank accounts, building society or credit union accounts standing in her sole name.
10.3.All interests in life insurance policies and superannuation funds standing in her sole name
11. That the Applicant and Respondent shall be liable for and indemnify the other from any obligation that he or she may have regarding any debt or liability, including any taxation liability standing in his or her own name.
General Orders
12. That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed
13. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of said party and do all acts and things necessary to validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
14. That pursuant to section 121 of the Family Law Act 1975, leave is granted to the parties and their legal representatives to provide a copy of these Orders and the Reasons for Judgement dated 16 September 2022 to any Court or legal representative in the United Kingdom for the purposes of giving effect to Orders herein.
Notations
A.The parties have been advised by the Trustee of the UK Pension held by Bank 1 that in order for Bank 1 to follow the terms of any Court Order made outside of England and Wales, in this case a Pension Sharing Order, the Court Order must be made enforceable in England and Wales. This 'process' is governed in part by Civil Procedure Rules and Practice Directions (Part 74). The parties note that there are specific requirements set out within the Rules as to the written evidence which must be provided in support of any application in the UK. Once the application has been successful, the Court in the UK will issue a judgement which can then be used by Bank 1 to effect a Pension split
B.The parties have sought advice from a UK-based solicitor, Ms AE of AF Lawyers, in relation to obtaining a UK Pension Sharing Order. The parties have been advised that they will need to file a Permission to Apply Application in the UK together with the equivalent of a Consent Application, attaching a Pension Sharing Annexe, in order to seek to obtain a Pension Sharing Order in the UK. Ms AE is dual accredited for Family Law in UK and Australia and has offices in Suburb AH, QLD
C.For the purposes of Capital Gains Tax, both parties are non resident in UK. As such, according to the HMRC website, “From 27 October 2021, you must report the disposal online using the UK property service by the 60-day deadline, even if:
you’ve no tax to pay
you’ve made a loss
you’re registered for Self Assessment
If a property was jointly owned, each owner must tell HMRC about their own gain or loss. You also have to pay any non-resident Capital Gains Tax due within the same 60-day period.”
Both parties acquired the property at different times. The father acquired it in his sole name when he bought Dr AI’s share in Aug 2008
He then gifted 50% of his share to the mother on 10.11.2010.
The CGT will therefore be significantly different for both parties and is payable by both parties regardless of who gets the money.
D.The parties divorced on 27.05.2021 which is when the Decree Absolute came into effect. The UK financial year ended on 5.4.2022
15.
Schedule B
IT IS PROPOSED THAT:
1. That these Orders are made by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975.
Sale of AB Street Property and Capital Gains Tax
2. That within 28 days from the date of these Orders the parties do all things necessary to list the property situate at and known as AB Street, City AC in the United Kingdom for sale and the parties shall sign all documents necessary with an agreed listing agent to list the property for sale for an agreed figure of not less than 200,000 UK Pounds and the proceeds of sale distributed as follows:-
2.1.The balance of principal and interest owing in respect of any mortgage secured upon the said property;
2.2.Agent’s commission on the sale;
2.3.Legal costs and fees relating to the sale and discharge of any mortgage;
2.4.Adjustment of rates and taxes;
2.5.All other expenses which may have been reasonably incurred in respect of such sale; and
2.6.The balance then paid as follows:-
2.6.1.In payment to the Applicant Husband 60% of the amount by which the gross sale price for the property exceeds 200,000 UK pounds; and
2.6.2.The balance then remaining to the Respondent Wife.
3. That to give effect to the sale of the AB Street property in accordance with Order 2 herein, the following shall occur: -
3.1.That as to the appointment of a real estate agent ("the agent")
3.1.1.That within 14 days from the date of the Orders, the Wife shall write to the Husband and nominate three (3) real estate agents for the Husband to select from; and
3.1.2.Within 7 days of receipt of the Wife's communication in Order 3.1.1 herein, the Husband shall respond to the Wife in writing, selecting one of the three (3) nominated real estate agents; and
3.1.3.The Husband and Wife shall thereafter sign all such documents as may be required by the agent to give effect to the appointment.
3.1.4.The parties shall be equally responsible for any upfront costs associated with the appointment of the agent.
3.2.That as to the appointment of a solicitor/conveyancer:
3.2.1.That within 7 days from the appointment of the real estate agent, the Husband shall write to the Wife and nominate three (3) solicitor/conveyancers for the Wife to select from; and
3.2.2.Within 7 days of receipt of the Husband's communication in Order 3.2.1 herein, the Wife shall respond to the Husband in writing, selecting one of the three (3) nominated solicitor/conveyancers; and
3.2.3.The Husband and Wife shall thereafter sign all such documents as may be required by the solicitor/conveyancer to give effect to the appointment.
4. That the parties meet the costs of any CGT in accordance with their respective liability based on their taxable income or any other taxation liability arising from the sale of AB Street, City AC, following any liability calculation made by HM Revenue and Customs in the United Kingdom and that each party shall pay their respective liability.
Cash Payments
5. That within 7 days of the date of these Orders, the Applicant and Respondent shall do all things and sign all documents necessary to cause the balance of the funds held in the Acorn Lawyers Trust Account from the sale of the former matrimonial home situate at F Street, Suburb G, be distributed as follows: -
5.1.The sum of $20,000.00 be retained in the Acorn Lawyers Trust Account for the sole purpose of facilitating and paying the legal costs associated with Order 8 herein;
5.2.55% of the balance then remaining to the Respondent Wife; and
5.3.45% of the balance then remaining to the Husband.
6. That any remaining amount held in the Acorn Lawyers Trust Account upon the conclusion of the process referred to in Order 8 herein be distributed in accordance with Orders 5.2 and 5.3, that is:
6.1.55% of the remaining balance to the Wife; and
6.2.45% of the remaining balance to the Husband.
Superannuation Splitting
7. That:
7.1.In accordance with Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to Mr Thukral from his interest in Superannuation Fund 1 …54, Ms Trishna is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $40,000.00 and there is to be a corresponding reduction in the entitlement Mr Thukral would have had but for these Orders.
7.2.Having been accorded procedural fairness in relation to the making of these Orders, these Orders bind the Trustee of Superannuation Fund 1 …54.
7.3.In accordance with Section 90 XT (1)(a) of the Family Law Act, the Court:
7.3.1.Creates an entitlement on the part of the Wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
7.3.2.Makes a corresponding reduction in the entitlement to the Husband, or such other person to whom a splittable payment may be made, would have had in the fund, but for these Orders.
7.4.Whenever the Trustee of the funds makes a splittable payment out of the Husband's interest in the fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in Order 7.1 of these Orders in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
7.5.This Order have effect from the operative time and the operative time for these Order is four (4) business days after a sealed copy of these Orders is served on the Trustee.
7.6.As the Trustee has been accorded procedural fairness in relation to the making of these Orders, these Orders bind the Trustee of the said fund to do all acts and things and sign all documents necessary so as to observe the Trustee obligations under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001.
7.7.That each party and each of the Trustees have liberty to apply in relation to the implementation of the Orders effecting the superannuation interest of party herein.
UK Pension Splitting
8. That the parties are to do all acts and things necessary, including executing all documents required to give effect to the following: -
8.1.The Husband shall within 7 days from the date of these Orders, instruct Ms AE of AF Lawyers, or another agreed UK-based solicitor, to prepare and lodge a Consent Application and Permission to Apply Application that complies with the requisite legislation, which will have the effect of creating an entitlement to the Wife out of the Husband's interest in AG Trustees Ltd managed by Bank 1 in the United Kingdom, using the base sum of $253,347.00 (or the percentage equivalent, being approx.. 31%), and that there be a corresponding reduction in the entitlement Mr Thukral would have otherwise had; and
8.2.The Husband shall instruct the solicitor engaged to provide the Wife with information requested as to the progress of the UK Pension Sharing Application; and
8.3.To facilitate Order 8 herein:
8.3.1.The legal costs associated with Order 8 herein shall be paid from the funds retained in the Acorn Lawyers Trust Account pursuant to Order 5.1 herein; and
8.3.2.The parties shall otherwise equally share any and all legal costs associated with Order 8.
9. The Husband be restrained by injunction from dealing with his interest in AG Trustees Ltd managed by Bank 1 except to comply with these Orders.
10. That the parties be at liberty to apply on short notice for further or other orders to give effect to the division of the Husband's interest in AG Trustees Ltd managed by Bank 1.
Chattels, Liabilities and other property
11. That within 21 days of the date of these Orders, any joint accounts where in Australia or elsewhere, not otherwise covered by these Orders shall be closed and for the purposes of this Order:
11.1.Both parties shall do all things necessary and sign all documents to facilitate the closure of any accounts; and
11.2.The balance of any accounts, after payment of any fees related to closure, shall be distributed equally between the parties.
12. That subject to the Orders herein, the Applicant shall retain all interest in and entitlement to:
12.1.All personal property and motor vehicles now in his respective possession or control.
12.2.All shares, debentures, units in unit trusts, bank accounts, building society or credit union accounts standing in his sole name.
12.3.All interests in life insurance policies and superannuation funds standing in his sole name.
13. That subject to the Orders herein, the Respondent shall retain all interest in and entitlement to:
13.1.All personal property and motor vehicles now in her respective possession or control.
13.2.All shares, debentures, units in unit trusts, bank accounts, building society or credit union accounts standing in her sole name.
13.3.All interests in life insurance policies and superannuation funds standing in her sole name.
14. That the Applicant and Respondent shall be liable for and indemnify the other from any obligation that he or she may have regarding any debt or liability, including any taxation liability standing in his or her own name.
General Orders
15. That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
16. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of said party and do all acts and things necessary to validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
17. That pursuant to section 121 of the Family Law Act 1975, leave is granted to the parties and their legal representatives to provide a copy of these Orders and the Reasons for Judgement dated 16 September 2022 to any Court or legal representative in the United Kingdom for the purposes of giving effect to Orders herein.
Notations
A.The Mother proposes these Consent Orders to reflect the Court's intentions as set out in the Reasons for Judgement dated 16 September 2022.
B.The parties note that for the purposes of obtaining a Pension Sharing Order, in order for Bank 1 to follow the terms of any Court Order made outside of England and Wales, in this case a Pension Sharing Order, the Court Order must be made enforceable in England and Wales. This 'process' is governed in part by Civil Procedure Rules and Practice Directions (Part 74). The parties note that there are specific requirements set out within the Rules as to the written evidence which must be provided in support of any application in the UK. Once the application has been successful, the Court in the UK will issue a judgement which can then be used by Bank 1 to effect a Pension split.
C.The parties have sought advice from a UK-based solicitor, Ms AE of AF Lawyers, in relation to obtaining a UK Pension Sharing Order prior to entering into these Australian Court Orders. The parties have been advised that they will need to file a Permission to Apply Application in the UK together with the equivalent of a Consent Application, attaching a Pension Sharing Annexe, in order to seek to obtain a Pension Sharing Order in the UK.
D.For the purposes of Capital Gains Tax, both parties are non resident in UK. As such, according to the HMRC website, “From 27 October 2021, you must report the disposal online using the UK property service by the 60-day deadline, even if: you’ve no tax to pay, you’ve made a loss, or you’re registered for Self-Assessment
If a property was jointly owned, each owner must tell HMRC about their own gain or loss. You also have to pay any non-resident Capital Gains Tax due within the same 60-day period.”
Both parties acquired the property at different times. The father acquired it in his sole name when he bought Dr AI’s share in Aug 2008. He then gifted 50% of his share to the mother on 10.11.2010. The CGT will therefore be significantly different for both parties and is payable by both parties regardless of who gets the money.
E.The parties divorced on 27.05.2021 which is when the Decree Absolute came into effect. The UK financial year ended on 5.4.2022