Wheller and Wheller

[2013] FamCA 1127

FAMILY COURT OF AUSTRALIA

WHELLER & WHELLER [2013] FamCA 1127

FAMILY LAW – PROPERTY – Consent orders – just and equitable.

Family Law Act 1975 (Cth)

APPLICANT: Mr D Wheller

RESPONDENT: Ms Wheller

FILE NUMBER: MLC 2615 of 2012

DATE DELIVERED: 12 November 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 11 – 12 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bartfeld QC with Mr Holmes

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: Mr Geddes QC

SOLICITOR FOR THE RESPONDENT: Coote Family Lawyers

ORDERS

BY CONSENT IT IS ORDERED THAT

1. All previous Orders be and are hereby discharged.

2. That the husband pay or cause to be paid to the wife by way of property settlement:

   (a)   the sum of $846,000 within 90 days (“the payment”); and

   (b)  the sum of $325,000 within 7 days of the settlement of the sale of the property at 1 B Street, Suburb C (“the investment property”)

and the wife do all such acts and things as may be necessary to cause the proceeds of sale of the investment property to be paid into the bank account of the D Trust and thereafter she be restrained from dealing with such proceeds except for the purposes of enforcing this Order.

1. In relation to the property at 2 B Street, Suburb C described in Certificate of Title Volume … Folio … (“the former matrimonial home”) contemporaneously with the wife’s receipt of the payment the husband and wife do all such acts and things and sign all such documents as are required to cause:

   (a)   Mortgage dealing … in favour of Wheller Pty Ltd to be discharged and/or refinanced into the husband’s sole name, at the husband’s expense; and

   (b)  Mortgage dealing … in favour of the ANZ Bank (“the former matrimonial home”) to be discharged and/or refinanced into the wife's sole name, at the wife’s expense.

2. Pending the receipt by the wife of the payment, the husband pay or cause to be paid:

   (a)   $7,500 per month with such sum to be offset as to 100 per cent of the husband’s liability to pay child support under any assessment issued or issuing by the Child Support Registrar, with such payments to be made by the 4th of each month;

   (b)  Mortgage, rates and insurance for the former matrimonial home as and when they fall due, including any current arrears in instalments;

   (c)  Mortgage, rates and insurance for the investment property as and when they fall due; and

   (d)  Registration and insurance in respect of the Range Rover driven by the wife.

3. Upon receipt by the wife of the payment, the wife do all such acts and things and sign all such documents as are required, at the husband’s expense, to:

   (a)   Resign any office held by her in the entities as outlined in Schedule A hereto, (“the Husband’s Entities”);

   (b)  Transfer to the husband and/or his nominee any shares held by her in any of the Husband’s Entities;

   (c)  renounce all claim and entitlement (if any) including any entitlement standing to her credit or debit in loan accounts (in which case such accounts be assigned to the husband and/or his nominee) in relation to the Husband’s Entities; and

   (d)  assign and forgive respectively any debit or credit loan accounts in the Husband’s entities to the husband and/ or his nominee.

4. Except as otherwise provided in these Orders, the husband shall pay and indemnify the wife and keep her indemnified against all liability of or in relation to the Husband’s Entities including any debt personally guaranteed by the husband and including any unpaid tax, penalties, fines and interest assessed or hereinafter assessed against the wife with respect to income derived, distributed or otherwise received by her from any of the Husband’s Entities or any amount owed by the wife to any or all of the Husband’s Entities and from all actions, proceedings, costs, claims and demands in respect thereof.

5. Pending receipt by the wife of the payment the husband, save as is required to comply with paragraph 2 of these Orders:

   (a)   by himself, his servants or agents be and is hereby restrained from:

   i.further encumbering the former matrimonial home and/or the investment property;

   ii.selling, alienating, encumbering or dealing with any shares or entitlements in the Husband’s Entities;

   iii.voting in favour of any resolution or in any way divesting himself of any interest or control or reducing the value of his interest in any of the Husband’s Entities; and/or

   iv.voting in favour of any resolution for the disposition of any asset owned by the Husband’s Entities, save in the ordinary course of business;

   v.altering the share structure of any company or the trustee or power of Appointor of any of the trusts included in the Husband’s Entities;

   without the wife's prior written consent, save that the wife understands that the husband is about to liquidate the entities listed at #11, 41, 44, 45, 51, 52 and 53 of Schedule A.

6. The wife otherwise retain for her sole use and benefit, to the exclusion of the husband, all other assets and liabilities in her sole name including but not limited to the following; 

   (a)   the former matrimonial home;

   (b)  the 4WD motor vehicle;

   (c)  all savings in her sole name; and

   (d)  her superannuation entitlements with ING and Mercer. 

Subject to any encumbrance thereon for which the wife will pay and indemnify the husband absolutely in relation thereto.

1. The husband otherwise retain for his sole use and benefit, to the exclusion of the wife, all other assets and liabilities in his sole name including but not limited to the following; 

   (a)   all savings in his sole name; and

   (b)  his superannuation entitlements in the Wheller Superannuation Fund; and

Subject to any encumbrance thereon for which the husband will pay and indemnify the wife absolutely in relation thereto.

10. This Order is binding upon the Trustee of the Wheller Superannuation Fund (“the Fund”).

11. The whole of the wife’s entitlement in the Fund be allocated to the Husband.

12. Whenever the Trustee of the Fund makes a splittable payment from the interest held by the wife in the Fund, the trustee shall pay to the husband the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and there be a corresponding reduction in the entitlement that the wife would have had, but for these Orders.

13. Order 11 has effect from the operative time.

14. The operative time for the purpose of these Orders shall be four business days after the date of these orders.

15. Upon the payment split being affected in the Fund the parties shall do all such acts and things as are required to cause the wife to resign as a member of the Fund.

16. Until the wife resigns as a member of the Fund both parties be and are hereby restrained by themselves, their servants and/or agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of their interest in the Fund a "not splittable payment" within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001.

17. Unless otherwise specified in these Orders and save for the purposes of enforcing any monies 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 the date of these Orders;

(b)  monies standing to the credit of the parties are to become the property of the party in whose name the account is registered;

(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;

(d)  insurance policies remain the sole property of the owner named thereon; and

(e)  any joint tenancy of the parties in any real or personal estate be hereby expressly severed.

18. All extant applications be dismissed and the matter be removed from the list of pending cases awaiting hearing.

AND THE COURT NOTES BY CONSENT

A.     The parties intend these Orders shall as far as practicable finalise their financial relationship and avoid further proceedings between them.

B.     Both parties acknowledge that the terms of this settlement and consequent Orders are confidential and not to be released to any other person.

C.     That contemporaneously with the execution of these Orders, the parties have entered into a Binding Financial Agreement in finalisation of spousal maintenance.

D.    That contemporaneously with the execution of these Orders, the parties have entered into a Binding Child Support Agreement pursuant to which the husband is to pay for the support of the children:

(a)   to the wife, commencing upon the payment being made to her, pursuant to paragraph 2 hereof $300 per week to be indexed in accordance with any increase in the Consumer Price Index of Melbourne on 1 July 2014 and yearly thereafter;

(b)  all private school fees at their current schools or such other school as the parties may agree, including fees, levies, camps, books, uniforms and compulsory activities;

(c)  all private health insurance levies at the current level of cover;

(d)  all gap medical, optical, physiotherapy, orthodontic, dental and other specialist medical expenses;

(e)  all extra-curricular activities, including uniforms and equipment, as agreed; and

(f)   a mobile phone for the children, with H to obtain a phone in Grade 6 (as T did).

IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel.

IT IS DIRECTED THAT
All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wheller & Wheller 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 2615 of 2012

Mr D Wheller

Applicant

And

Ms Wheller

Respondent

REASONS

1. This case involves a complex corporate structure and a significant dispute between the single expert witness and the expert appointed by the wife as to the value of the husband or the parties’ interests in the various entities which form part of the business that the husband operates.  The significant issue was the dispute between the experts as to the appropriate methodology to be applied for the purposes of valuing those business interests.  It would have been no doubt difficult to determine the matter and the outcome of the proceedings would have been dependent upon which valuation was accepted.  That difference would represent a significant difference in outcome for the parties and because the risks are great cases such as this one often require the parties to apply commercial reality.

2. It is also fair to say that it is also often quite difficult to reach agreement in relation to matters such as these.  However in this case both parties have had the benefit of being represented by senior counsel, and junior counsel in the case of the husband, and experienced solicitors, and have no doubt had the assistance of financial advisers.  Clearly that has helped them to reach a resolution and they are to be congratulated for doing so.

3. The parties are obviously no longer living together. They no longer have the common use of the property that they own and, as envisaged in Stanford’s case [Stanford  v Stanford (2012) CLR 108], the assumptions that underpin the arrangements they made with respect to their property have been brought to an end by the end of their relationship. Those arrangements they made during their relationship which were appropriate during that time are no longer appropriate and, in all of the circumstances, I am satisfied that it is just and equitable to make these orders for property settlement.

4. I have read the material upon which they rely and I am satisfied that the orders that they ask me to make are just and equitable.  I am also satisfied, as I am required to be pursuant to s 81, that these orders will, as far as it is practicable to do so, bring an end to the financial arrangements between these parties. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 12 November 2013.

Associate: 

Date:  21 May 2014