VINCENT-CARTER & CARTER

FAMILY COURT OF AUSTRALIA

VINCENT-CARTER & CARTER

[2015] FamCA 888

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – long relationship – final orders made by consent

Family Law Act 1975 (Cth)

APPLICANT:

Ms Vincent-Carter

RESPONDENT:

Mr Carter

FILE NUMBER:

MLC

4976

2013

DATE DELIVERED:

21 September 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

21 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Li Rosi

SOLICITOR FOR THE APPLICANT:

Kliger Partners

COUNSEL FOR THE RESPONDENT:

Ms Kofoed

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers Lawyers

Orders

BY CONSENT IT IS ORDERED:

That Orders 3(b), 3(c), 3(d) and 4 of the Orders made on 3 March 2015 be and are hereby discharged.
That the Husband pay to the Wife the sum of $475,000 ("the payment") within thirty (30) days of the date of these Orders ("the date").
That by the date and contemporaneously with the Wife's compliance with Orders (4) and (5) herein, the Husband and the Wife do all such things and sign any and all such documents as are necessary to authorise Kliger Partners, of Level 2, 280 Queen Street, Melbourne, Victoria, 3000, to release all moneys invested in the Controlled Investment Account on behalf of the parties (account held with the Macquarie Bank Limited, Account Number …, Investment Number …) to the Wife, including all accrued interest thereon.
That contemporaneously with the date and the compliance by the Husband with Order (6) herein, the Wife relinquishes all of her right, title and interest in B Pty Ltd ("B Pty Ltd") and disclaims any legal or equitable interest whether as beneficiary and/or creditor of the Vincent-Carter Trust ("VCT") and she assign to the Husband or his nominees, any credit loan accounts for unpaid present entitlements owing to the Wife from the VCT, the Husband or B Pty Ltd and assign to the Husband any and all debit loan accounts owing by the Wife solely or jointly to them in place of the Wife in relation to B Pty Ltd and VCT.
That contemporaneously with the payment referred to in Order (2) herein and subject to the Husband's compliance with Orders (2), (3) and (6) herein, the Wife shall transfer to the Husband and/or his nominee, at the Husband's cost and expense, all of her legal and equitable interest in the following properties:
(a)C Street, D Town, Victoria, …, ("the D Town property") being the land more particularly described in Certificate of Title Volume … Folio …; and
(b)E Street, F Town, Victoria, …, ("the F Town property") being the land more particularly described in Certificate of Title Volume … Folio ...
That subject to the Wife's compliance with her obligations in accordance with Orders (4) and (5) herein:
(a)The Husband be responsible for and indemnify the Wife and keep her effectively indemnified with respect to unpaid liabilities, past present and future and contingent of whatsoever nature and kind, including but not limited to any and all moneys due to the G Shire, H Water, any and all utility services connected to the D Town and F Town properties, the Bendigo Bank loans and any moneys due to the Australian Taxation Office ("ATO") of and in relation to:
(i)B Pty Ltd; and
(ii)the VCT.
(b)The Husband indemnify the Wife in relation to all and any unpaid taxation assessed or hereinafter assessed, including a Capital Gain or deemed Capital Gain arising from the disposal by the Husband of any property in the VCT and, furthermore, the Husband indemnify the Wife against all unpaid taxes assessed or hereinafter assessed, including GST, CGT and deemed CGT and also any other liability of and in relation thereto, inclusive of penalty interests, costs, acquisition costs and claims and demands of and in relation to the following properties situate at and known as:
(i)the D Town property; and
(ii)the F Town property.
(c)That the Husband use his best endeavours to remove the Wife from any and all guarantees provided by her in relation to all loans and/or credit cards with:
(i)the Westpac Banking Corporation;
(ii)the National Australia Bank; and
(iii)the Bendigo Bank loans which are secured by way of mortgage on the D Town property in mortgage number …, in particular, account numbers:
(A)…;
(B)…; and
(C)….
(collectively referred to as the "Bendigo Bank loans").
That within thirty (30) days of the date of these Orders, the Husband shall transfer to the Wife, at the Wife's cost and expense, all of his shareholding in F Town Childcare Centre Pty Ltd ACN ... PROVIDED HOWEVER the Husband indemnifies the Wife in relation to any liability incurred in the name of F Town Childcare Centre Pty Ltd only in its capacity as Trustee of the VCT.
That the Husband, at the Wife's cost and expense, relinquishes all of his right, title and interest, contingent or otherwise, including any powers of appointment held by him, in the following:
(a)       The I Trust;
(b)       The J Trust; and
(c)       The K Trust;
(collectively referred to as the "Wife's Trusts").
That contemporaneously with Order (8) herein and at the Wife's cost and expense, the Husband:
(a)Transfer to the Wife and/or her nominee all shares owned and/or held by him in F Town Childcare Centre Pty Ltd as Trustee of the I Trust;
(b)Transfer to the Wife and/or her nominee all shares owned and/or held by him in L Pty Ltd as Trustee of the J Trust;
(c)Disclaim his interest as beneficiary and/or creditor of the following Trusts:
(i)The K Trust;
(ii)The I Trust; and
(iii)The J Trust.
(d)Assign to the Wife and/or her nominee any credit loan accounts for unpaid present entitlements owing to the Husband personally or by the Wife's Trusts to the VCT from the Wife's Trusts and assign to the Wife any and all debit loan accounts owing by the Husband solely or jointly by them in place of the Husband;
(e)Sign any and all such documents required to remove himself as Appointor of the Wife's Trusts;
(f)Release and discharge the Appointors, Guardians, Trustees and Directors and Shareholders of the Trustees of the Wife's Trusts and the beneficiaries therefrom from all claims and proceedings;
(g)Relinquish all claims, interests and entitlements in respect of the Wife's Trusts and:
(i)F Town Childcare Centre Pty Ltd only in its capacity as Trustee of the I Trust and the K Trust;
(ii)L Pty Ltd only in its capacity as Trustee of the J Trust; and
(iii)the M Trust, subject to the provisions of Order (10) herein.
That subject to the Wife's compliance with her obligations in accordance with the provisions of these Orders:
(a)The Wife be responsible for and indemnify the Husband and keep him effectively indemnified with respect to unpaid liabilities past, present and future and contingent of whatsoever nature and kind, including any and all moneys due to the ATO in relation to the Wife's Trusts (excluding any taxation liability owed by the M Trust shall be dealt with as set out in Orders (11) and (12) herein); and
(b)The Wife indemnify the Husband in relation to any unpaid taxation assessed or hereinafter assessed, including a Capital Gain or deemed Capital Gain arising from any disposal by the Wife of any assets of the Wife's Trusts and, furthermore, the Wife indemnify the Husband against all unpaid taxes assessed or hereinafter assessed, including GST, CGT and deemed CGT and also any other liability of and in relation thereto, inclusive of penalty interests, selling costs, acquisition costs, claims and demands of and in relation to the Wife's Trusts.
That the Husband and the Wife shall each be severally liable for 50 per cent of any and all taxation liability which may arise in favour of the ATO with respect to the business activities of the M Trust (Trustee: L Pty Ltd) and/or including 50 per cent of tax that may be required to be paid in relation to any Director's Penalty Notice which may be addressed to the Wife in relation to any alleged tax owed by the M Trust. The parties agree that in order to give effect to this Order they shall:
(a)Jointly engage an agreed independent accountant to liaise on their joint behalf with the ATO in relation to negotiating their minimum amount which the ATO will accept in payment of the taxation liability, if any;
(b)Share equally the costs of the joint engagement with the said independent accountant;
(c)Should the parties not be able to agree upon an accountant, then the accountant shall be nominated by the Institute of Chartered Accountants with the costs being shared equally between the parties and
(d)That the 50 per cent amount that each party is to pay shall be determined by the independent accountant appointed pursuant to Order (11)(a) herein and that each party shall pay their respective 50 per cent liability direct to the ATO immediately the amount becomes due and payable.
That by way of security for the Husband and the Wife's obligations pursuant to Order (11) herein:
(a)The Wife shall place the sum of $40,000 in an investment account through the Kliger Partners Controlled Trust Account which moneys shall be applied 50 per cent towards her taxation liability together with 50 per cent of the costs incurred in accordance with Order (11) herein, with any excess funds, from the said investment, to be paid out to the Wife and any shortfall to be met by her. PROVIDED HOWEVER that in the event that there is no communication from the ATO by the expiration of two (2) years from the date of these Orders, then the moneys invested through the Kliger Partners Controlled Trust Account (in accordance with this Order) together with any accrued interest be paid out to the Wife, and PROVIDED FURTHER that in the event that the Wife purchases real estate property within the two (2) year period from the date of these Orders, the said moneys referred to in this Order be forthwith paid out to the Wife and in the event that the Wife fails to meet her obligations to the ATO pursuant to Order (11) herein, then she shall sign all such documents and do all things necessary to sell any real estate property purchased by her and the proceeds of sale be applied as follows:
(i)in relation to all costs, commissions and expenses of the sale;
(ii)to the pay the Wife's 50 per cent entitlement of the taxation liability and any other costs incurred by her in order to comply with Order (11) herein; and
(iii)any excess funds to be paid out to the Wife.
(b)That in the event that the Husband fails to meet his obligations to the ATO pursuant to Order (11) herein, then he shall sign all such documents and do all things necessary to sell the F Town property and the proceeds of the sale be applied as follows:
(i)in relation to all costs, commissions and expenses of the sale;
(ii)to pay the Husband's 50 per cent entitlement for the taxation liability and other costs incurred by him in order for him to comply with Order (11) herein; and
(iii)any excess funds are to be paid out to the Husband.
That in the event that the Husband fails to make the payment pursuant to Order (2) herein, then the Husband shall sign all such documents and do all things necessary to place the F Town property on the market for sale with the proceeds of sale being applied to:
(a) In payment of all costs, commissions and expenses of the sale;
(b)In payment of moneys owed to the Wife, plus interest at the rate under the Family Law Act1975 as amended from the date of default until the payment; and
(c) Any excess funds, if any, to the Husband.
That in the event that the proceeds of sale of the F Town property are not sufficient to meet the payment to the Wife referred to in Order (2) herein, then the Husband shall sign all documents and do all things necessary to place the D Town property on the market for sale and the proceeds of sale being applied as follows:
(a) In payment of all costs, commissions and expenses of the sale;
(b)In discharge of all moneys owed to the Bendigo Bank as to registered mortgage number …;
(c)Any other balance outstanding to the Wife together with interest thereon at the rate under the Family Law Act from the date of default until the payment; and
(d) The balance to the Husband.
That in the event that the D Town and/or F Town properties are sold pursuant to Order (13) and/or Order (14) herein and in the event that the taxation liability pursuant to Order (11) herein has not been determined, then the Husband shall place the sum of $40,000 from the proceeds of sale of the D Town and/or F Town properties in an investment account through the Kliger Partners Controlled Trust Account, which money shall be applied towards the Husband's 50 per cent taxation liability and any excess funds from the said investment to be paid to the Husband and any shortfall to be met by the Husband.
That the Husband and the Wife each shall be responsible to pay one half of the mediator's fees fixed at $2,100 each.
That in default of the parties or either of them doing any acts or things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Family Court of Australia at Melbourne be appointed pursuant to Section 106A to execute all such documents in the name of the party in default, providing the party in default has not remedied the default within seven (7) days of being requested to do so by the other party in writing and do all such acts and things necessary to give validity and operation to these Orders.

That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these 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 this date.
(b)Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.
(c)All insurance policies to become the sole property of the owner named thereon.
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

IT IS DIRECTED:

That the Minutes remain on the Court file.
That the Initiating Application (Family Law) filed on 25 July 2014 in relation to parenting and property matters and the Response to Initiating Application (Family Law) filed on 19 September 2014 in relation to parenting and property matters be otherwise dismissed.
That all documents produced by Subpoena be returned to the party and/or parties who produced the same.

THE COURT NOTES:

A.In accordance with Section 81 of the Family Law Act 1975 the parties intend these Orders will as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.
B.The parties are entering into a Section 90D and Section 90E Financial Agreement in relation to spousal maintenance.
C.The parties have sought a dismissal of all parenting Applications before the Court on the basis that they each shall retain joint parental responsibility for the care, welfare and development of the child, N born in 1999, noting that she is resides with the Wife and spends time with the Husband in accordance with her (N's) wishes.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Vincent-Carter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4976 of 2013

Ms Vincent-Carter

Applicant

And

Mr Carter

Respondent

REASONS FOR JUDGMENT

In the matter of Vincent-Carter & Carter, I am asked to make orders by consent which will finalise the parties’ competing property applications and will also conclude parenting issues that are outstanding between the parties.
The background to the matter is as follows.
The wife is the applicant in the proceedings, is aged 50 years and is in engaged in part time employment, earning an income of approximately $26,000 per annum. She is a qualified professional. She is hopeful, in the future, of securing appropriate full time employment.
The husband is aged 50 years. He is also a professional. He is employed by Ford and has an income of approximately $119,000 per annum plus superannuation and other benefits.
There are three children of the marriage. The two elder children, Ms O and Mr Q, are university students; N, the parties’ youngest child is aged 15 years and lives with the wife.
The orders that I am asked to make contain a notation which confirms that N will continue to live with the wife and spend time with the father in accordance with her wishes.
The parties married in 1992 and separated in 2012; they were divorced in 2013. Theirs is a relationship that spans approximately 20 years.
The parties have attended a mediation with Mr Holmes of counsel. Through their solicitors they have indicated that they approached that mediation in a pragmatic and respectful manner and the minute of orders signed by them is the fruit of that mediation process.
There were a multitude of disputes between the parties as to how they conducted their financial affairs during the course of their relationship. The wife conducted kindergarten businesses and one of the issues that would likely have been ventilated between the parties was as to a question of whether or not she effectively managed those businesses and whether the parties current liabilities to the ATO could have been avoided had the businesses been conducted differently.
It is likely that disputes in relation to matters such as that would have occupied significant court time and come at great expense to the parties. The resolution on a final basis has avoided that expense. The parties have helpfully presented a statement of agreed facts, which sets out their personal history but also provides details as to the compromised balance sheet that they utilised in order to enter into settlement discussions.
That compromised balance sheet indicates that the total property of the parties, excluding superannuation, was valued at somewhere between $850,000 and $921,000; on any view, a modest pool of assets. In addition, the husband has an interest in a defined benefits superannuation scheme, the value of which is approximately $548,000.
The proposed settlement will provide a cash payment to the wife. The cash payment to her totals approximately $635,000. I am told that a payment to her in that sum will enable her to rehouse herself in the Q Town or F Town area where this family has been based for a considerable period. That adjustment represents a payment to the wife of between 51 to 56 per cent of the pool of non-superannuation assets. Taking into account the superannuation, the adjustment to the wife is something to the order of 46 per cent of that pool.
The proposed terms of settlement are presented to me on the basis that this is a true compromise. It avoids the expense of a trial and the emotional cost that such litigation brings to the parties. The parties have been represented by solicitors at the mediation. They have had the benefit of a senior and experienced Family Law practitioner who has conducted the mediation.
Having regard to that background, I am satisfied that the proposed orders are just and equitable. They are orders that properly reflect the parties’ respective contributions, and relevant s 75(2) factors.

Accordingly, I make orders in the terms of the signed Minute of order.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 21 September 2015

Associate:

Date: 21 September 2015

[2015] FamCA 888

21 September 2015

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Property Law

Legal Concepts

Consent

Remedies

Costs

Injunction

Duty of Care

Fiduciary Duty