FAMILY COURT OF AUSTRALIA
| TURNER & TURNER AND ANOR | [2015] FamCA 483 |
| FAMILY LAW – PROPERTY – CHILD SUPPORT – SPOUSAL MAINTENANCE – UNDEFENDED HEARING – Where the husband’s response was previously struck out – where the husband did not attend the final hearing – large asset pool – consideration of s 75(2) factors – where the wife has primary care for the child – where the husband has a higher income capacity – just and equitable |
| Child Support (Assessment) Act 1989 (Cth) Chang & Su (2002) FLC 93-117; [2002] FamCA 156 |
| APPLICANT: | Ms Turner |
| FIRST RESPONDENT: | Mr Turner |
| SECOND RESPONDENT: | Turner Pty Ltd |
| FILE NUMBER: | MLC | 5928 | of | 2013 |
| DATE DELIVERED: | 29 May 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 30 March 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Puckey |
| SOLICITOR FOR THE APPLICANT: | Taussig Cherrie Fildes |
| THE FIRST RESPONDENT: | No appearance |
COUNSEL FOR THE SECOND RESPONDENT: | No appearance |
| SOLICITOR FOR THE SECOND RESPONDENT: | Kenna Teasdale Lawyers |
ORDERS
IT IS ORDERED THAT
All extant interim orders be discharged.
On or before 4.00 pm on 26 June 2015, the husband do all acts and things and sign all necessary documents as may be required to:
a.Pay to the wife the sum of $12,042,312 (“the Payment”); and
b.transfer to the wife, at his expense, the German motor vehicle registration ...
Pending receipt by the wife in full of the Payment and any interest or other monies payable to her pursuant to these orders and the husband’s full compliance with his obligations pursuant to paragraph 2 herein, the husband pay to the wife spousal maintenance in the amount of $4,000 per month.
If the Payment is not made by the husband to the wife within 30 days, (“the Default”):
a.interest accrue on such amount as remains outstanding at the rate prescribed under the Family Law Rules 2004 (Cth) ;
b.within 7 (seven) days of the Default, the husband do all acts and things and sign all necessary documents as may be required to offer such of his his shares in Turner Pty Ltd (“TPL”) for sale to all other existing shareholders as are required to make the Payment to the wife, and, from the sale proceeds, to make the Payment (plus interest payable pursuant to paragraph (a) of this order) to the wife;
c.if no purchaser is found for the husband's shares in TPL within 7 (seven) days of the Default:
i.the husband forthwith do all acts and things and sign all necessary documents as may be required to transfer to the wife such proportion of his shares in TPL as shall be equivalent in value to the unpaid balance of the Payment (plus interest payable pursuant to paragraph (a) of this order);…
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- Case
- [2015] FamCA 483
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the precise financial entitlements and obligations of each party. This included the quantum and method of payment of a substantial sum from the husband to the wife, the ongoing provision of spousal maintenance, the division of superannuation interests, and the husband's child support responsibilities, both periodic and non-periodic. Furthermore, the court needed to address the husband's personal guarantees and liabilities relating to corporate entities within the Turner Group, and to make orders regarding the allocation of various assets and liabilities between the parties.
Macmillan J made detailed orders to resolve the dispute. The husband was ordered to pay a sum of $12,042,312 to the wife and transfer a German motor vehicle. Pending this payment, the husband was to pay spousal maintenance of $4,000 per month. The orders stipulated mechanisms for the husband to satisfy the payment, including the potential sale of his shares in Turner Pty Ltd, and provided for interest to accrue in the event of default. The husband was also ordered to indemnify the wife against various liabilities, including personal guarantees and those arising from the Turner Group entities. The court also made specific orders regarding the division of the husband's interest in a superannuation fund and significantly departed from the assessed child support, ordering the husband to pay substantial weekly amounts and all educational and medical expenses for the child, including providing the wife with a supplementary credit card for these purposes. The orders also clarified the parties' entitlements to other property and allocated responsibility for associated liabilities, with the husband ordered to pay the wife's costs on an indemnity basis.
Orders
Orders of the court
IT IS ORDERED THAT
1.
All extant interim orders be discharged.
2.
On or before 4.00 pm on 26 June 2015, the husband do all acts and things and sign all necessary documents as may be required to:
a. Pay to the wife the sum of $12,042,312 (“the Payment”); and
b. transfer to the wife, at his expense, the German motor vehicle registration ...
3.
Pending receipt by the wife in full of the Payment and any interest or other monies payable to her pursuant to these orders and the husband’s full compliance with his obligations pursuant to paragraph 2 herein, the husband pay to the wife spousal maintenance in the amount of $4,000 per month.
4.
If the Payment is not made by the husband to the wife within 30 days, (“the Default”):
a. interest accrue on such amount as remains outstanding at the rate prescribed under the Family Law Rules 2004 (Cth) ;
b. within 7 (seven) days of the Default, the husband do all acts and things and sign all necessary documents as may be required to offer such of his his shares in Turner Pty Ltd (“TPL”) for sale to all other existing shareholders as are required to make the Payment to the wife, and, from the sale proceeds, to make the Payment (plus interest payable pursuant to paragraph (a) of this order) to the wife;
c. if no purchaser is found for the husband's shares in TPL within 7 (seven) days of the Default:
i. the husband forthwith do all acts and things and sign all necessary documents as may be required to transfer to the wife such proportion of his shares in TPL as shall be equivalent in value to the unpaid balance of the Payment (plus interest payable pursuant to paragraph (a) of this order); and
ii. TPL forthwith do all acts and things and sign all necessary documents as may be required to record the transfer of the husband's shares in TPL to the wife in the company register; and
d. in the event that the wife is unable to raise sufficient funds to meet the Payment (plus interest payable pursuant to paragraph (a) of this order) from the sale of the shares in TPL transferred to her pursuant to these orders, she have liberty to apply for such further and other orders necessary to enforce her entitlements pursuant to these orders.
5.
The husband be liable for and pay and indemnify the wife and keep the wife indemnified against any and all liability past, present and future of and/or in relation to and/or arising from:
a. any and all liabilities of the husband personally guaranteed by the wife or in respect of which she is howsoever otherwise liable; and
b. any and all of the corporate entities in the Turner Group as identified in paragraph 2 of the Affidavit of Ms B filed 20 March 2015 (Turner Group) including but not limited to:
i. any liability personally guaranteed by the wife;
ii. any debit loan accounts held in the wife's name including but not limited to debit loan accounts held jointly with the husband; and
iii. all unpaid taxation assessed or hereinafter assessed against the wife in respect of income or capital paid, distributed or deemed to have been paid or distributed to the wife from any entity in the Turner Group and/or the assignment of any and all loan accounts; and
c. any liability, including taxation, arising from or consequent upon any transaction required by the provisions of these Orders.
6.
Having been accorded procedural fairness in relation to the making of paragraphs 8 to 10 inclusive of these orders, paragraphs 8 to 10 inclusive of these orders bind the Trustee of MLC MasterKey Business Super Fund.
7.
The operative time from which paragraph 8 of these orders has effect is the fourth business day after the date of service of these orders upon the Trustee of the MLC MasterKey Business Super Fund.
8.
Pursuant to s 90MT(1 )(b) of the Family Law Act 1975 (Cth) (“the Act”):
a. the wife is entitled to be paid 50 per cent of each splittable payment out of the interest of the husband in MLC MasterKey Business Super Fund account no. 020069590 (“the Fund”); and
b. the husband's entitlement, and the entitlement of such other person to whom a splittable payment may be made, to payment out of the husband's interest in the Fund, is correspondingly reduced.
9.
The Trustee of the Fund, its servants and agents, do all such acts and things and sign all necessary documents as may be required to:
a. calculate in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement created by paragraph 8 of these orders;
b. pay the entitlement whenever a splittable payment becomes payable out of the husband's interest in the Fund.
10.
After service of the payment split notice pursuant to reg 7A.03 of the Superannuation lndustry (Supervision) Regulations 1994 (Cth) (“the Regulations”), the wife do all such acts and things and sign all necessary documents as may be required, including but not limited to exercising her request pursuant to reg 7A.06(1) of the Regulations, for the rollover or transfer of the transferable benefits out of the husband's interest in the Fund to a fund of the wife's choosing in accordance with reg 7A.12 of the Regulations.
11.
Pursuant to ss 116(1)(b) and 117(2) of the Child Support (Assessment) Act 1989 (Cth), there be a departure from the assessment of Child Support dated 29 January 2015 issued in respect of C born in 1999 (“the child”) effective from the date of the order and the husband pay or cause to be paid to the wife for the support of the child:
a. Pending payment in full of the Payment the sum of $1,120 per week to be adjusted annually in accordance with Consumer Price Index upward movements on 1 July each year commencing 1 July 2016; and
b. Upon payment in full of the Payment the sum of $600 per week to be adjusted annually in accordance with the Consumer Price Index upward movements on 1 July 2016.
12.
Pursuant to s 124(1) of the Child Support (Assessment) Act 1989 (Cth) the husband pay the following by way child support in a form other than periodic amounts for the child:
a. all educational expenses at D School or at such other private school(s) as the child may attend by agreement of the parties inclusive of tuition fees, compulsory levies, uniforms, books, stationery, computer requirements, camps and excursions;
b. all private tutorials and extra-curricular activities;
c. private health insurance and out of pocket medical, dental, optical and . orthodontic expenses; and
d. all out of pocket medical, dental and optical expenses.
13.
In relation to the payment of the expenses specified in paragraph 12 herein, the husband provide to the wife a supplementary credit card for her to use with an available credit of not less than $10,000 at all times and the wife be permitted to draw cash advances to pay any expenses which cannot be paid by credit card on the basis that the wife account to the Husband for the expenditure of funds within 7 (seven) days of each advance.
14.
If the husband and/or TPL fail to comply with any obligation pursuant to the provisions of these orders to sign any instrument or document required thereunder, a Registrar of the Family Court of Australia be appointed pursuant to s 106A of the Act to execute the said instrument or document in the husband's place.
15.
Pending the implementation of these orders, any joint tenancy of the parties in any real or personal estate is hereby expressly severed and the parties each hold their respective interests therein on trust for the other in such proportions as accord with their entitlements under the provisions of these orders.
16.
Save as otherwise provided in these orders, and save for the purposes of enforcing any monies due pursuant to these orders, each party be solely entitled to the exclusion of the other party to all other property (including choses-in-action) in the possession or control of such party as at the date of these orders and without limiting the generality thereof:
a. the wife receive and retain:
i. her one-sixth interest in the real property situate at E Street, Suburb F;
ii. her one-third interest in the estate of her late father, Mr G, including the real property situate at H Street, Suburb M;
iii. her bank accounts including but not limited to the balance of funds from the sale of the real property situate at I Street, K Town;
iv. her shares in publicly listed companies;
v. her superannuation entitlement; and
vi. her personal belongings and effects;
b. the husband retain:
i. his interest in the real property situate at J Street, K Town;
ii. his interest in the various corporate entities in the Turner Group;
iii. the contents of his residence;
iv. his bank accounts and investments;
v. his interest in the L Lodge, P Town;
vi. his superannuation entitlement; and
vii. his personal belongings and effects;
c. money standing to the credit of the parties in any joint bank account be retained by the wife;
d. each party forego any claims they may have to any superannuation benefits belonging to or earned by the other party;
e. insurance policies remain the sole property of the owner thereof; and
f. each party be solely liable for and pay and indemnify the other party and keep the other party effectively indemnified against any liability encumbering or otherwise relating to any item of property to which that first named party is entitled pursuant to these orders.
17.
The husband pay the wife's costs of, and incidental to, this application on an indemnity basis.
18.
All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.
IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
IT IS CERTIFIED THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
*These orders have been amended where underlined to accord with the orders as pronounced by the Honourable Justice Macmillan on 29 May 2015.
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