Winters and Winters and Anor

[2015] FamCA 400

FAMILY COURT OF AUSTRALIA

WINTERS & WINTERS & ANOR [2015] FamCA 400

FAMILY LAW – PROPERTY – Final orders – Where the parties have reached agreement and signed proposed final consent orders to give effect to that agreement – Where the Court is satisfied that it is just and equitable to make orders altering their interests in property and the proposed orders are appropriate, just and equitable.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Ms Winters

FIRST RESPONDENT: Mr Winters

SECOND RESPONDENT Ms BB

FILE NUMBER: BRC 9831 of 2012

DATE DELIVERED: 26 May 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 26 May 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance required

SOLICITOR FOR THE FIRST 

RESPONDENT:

No appearance required

SOLICITOR FOR THE SECOND

RESPONDENT:

No appearance required

Orders

IT IS ORDERED THAT:

1. The trial of these proceedings listed for five (5) days commencing 5 June 2015 be vacated.

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 DIRECTED THAT:

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

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT ON A FINAL BASIS:

Definitions

A.Husband means Mr Winters.

B.Settlement date means 60 days after these consent orders issue from the Family Court of Australia.

C.Wife means Ms Winters and Ms R as the two people are one and the same person.

D.Winters Group structure means D Pty Ltd, B Pty Ltd, J Pty Ltd, J Pty Ltd as trustee for the Winters Family Trust and T Pty Ltd as trustee for the T Superannuation Fund.

Retention of personal property

1. That the husband or his nominee shall forthwith retain and/or receive as his absolute property all his right, title and interest to and in, and the wife shall forthwith relinquish and/or transfer to the husband or his nominee, all her right, title and interest, if any, and if necessary, the wife shall sign all necessary documents and do all necessary acts to transfer to the husband or his nominee the following:

   a.The property located at U Street, Suburb V subject to the encumbrance secured thereon in accordance with Orders 3 to 5;

   b.The furniture, contents, artwork, households effects and jewellery in the husband’s possession;

   c.The personal belongings of the husband;

   d.The credit balances of the husband’s bank accounts;

   e.The credit balances of the parties’ joint accounts in accordance with Order 7;

   f.The debit balance of the husband’s personal credit cards;

   g.The Porsche model 1 motor vehicle in the husband’s possession and registered in the name of D Pty Ltd;

   h.The Porsche model 2 motor vehicle in the husband’s possession and registered in the name of B Pty Ltd;

   i.The BMW model 1 motor vehicle in the husband’s possession and registered in the name of the husband;

   j.The Jaguar model 1 motor vehicle in the husband’s possession and registered in the name of the husband;

   k.The partial property settlements received by the husband in these proceedings;

   l.The benefit of the legal fees paid by the husband in these proceedings;

   m.The following:

   i.D Pty Ltd including but not limited to the Business C in accordance with Order 11 and 12;

   ii.B Pty Ltd including but not limited to the Business A in accordance with Order 11 and 12;

   iii.J Pty Ltd in accordance with Order 11 and 12;

   iv.J Pty Ltd as trustee for the Winters Family Trust in accordance with Order 11 and 12;

   v.His member entitlement in T Pty Ltd as trustee for the T Superannuation Fund in accordance with Order 13.

2. That the wife shall forthwith retain and/or receive as her absolute property all her right, title and interest to and in, and the husband shall forthwith relinquish and/or transfer to the wife, all his right, title and interest, if any, and the husband shall sign all necessary documents and do all necessary acts to transfer to the wife the following:

   a.The furniture, contents, artwork, household effects and jewellery in the wife’s possession;

   b.The personal belongings of the wife;

   c.The credit balances of the wife’s bank accounts;

   d.The debit balance of the wife’s credit cards;

   e.The Porsche model 1 motor vehicle in the wife’s possession as at the date of these Order and registered in the name of D Pty Ltd in accordance with Order 8(a);

   f.The Volkswagen motor vehicle in the wife’s sister’s possession as at the date of these Orders and registered in the name of B Pty Ltd in accordance with Order 8(c);

   g.The partial property settlements received by the wife in these proceedings;

   h.The benefit of the legal fees paid by the wife in these proceedings;

   i.The wife’s member entitlement in T Pty Ltd as trustee for the T Superannuation Fund in accordance with Order 13; and

   j.The cash payment in accordance with Order 9.

The former matrimonial home

1. That by settlement date the husband and wife shall do all acts and sign all documents necessary to transfer to the husband or his nominee all right, title and interest to and in the property located at U Street, Suburb V (former matrimonial home) more particularly described as Lot .. on Special Plan …, County of W, Parish of X, Title Reference … at the husband’s sole expense.

2. That by settlement date, the husband and wife shall do all acts and things and sign all documents necessary to procure the release of the wife from the ANZ mortgage number … secured over the former matrimonial home at his own expense, and, as and from the date of these orders the husband shall indemnify the wife and keep her indemnified against any and all monies due and payable pursuant to such mortgage.

3. That by settlement date, the husband and wife, at the husband’s sole expense, shall do all acts and things and sign all documents necessary to refinance or transfer into his sole name the ANZ commercial bill facility registered over the assets of D Pty Ltd and to discharge the wife’s liability in relation to said account absolutely, and, from the date of these orders the husband shall indemnify the wife and keep her indemnified against the ANZ commercial bill facility registered over the assets of D Pty Ltd.

4. That pending the settlement date, the husband and wife are restrained and an injunction is granted restraining them from further encumbering any and all property being retained by them pursuant to these orders including, inter alia, the property of the Winters Group Structure, save and except for any action required to be taken by the husband so as to give effect to his obligations pursuant to these orders.

Bank accounts  

1. That by settlement date the husband and wife shall do all acts and sign all documents necessary to:

   a.Close and/or transfer to the husband the credit balance of all joint bank accounts as at the date of the signing of these Orders and the wife shall be restrained and an injunction shall issue restraining the wife from withdrawing any funds from those accounts pending settlement date;

   b.Close and/or transfer to the husband the debit balance of all joint credit cards accounts and the husband shall pay the debit balance of all joint bank accounts, as at the date of the signing of these Orders and the wife shall be restrained and an injunction shall issue restraining the wife from crediting any transactions against those accounts pending settlement date;

   c.Remove the wife as a signatory on any of the husband’s accounts, joint accounts and accounts in the name of the Winters Group Structure and the wife shall be restrained and an injunction shall issue restraining the wife from withdrawing any funds from those accounts pending settlement date.

Motor vehicle

1. That by 29 June 2015:

   a.husband and wife shall do all acts and sign all documents necessary to transfer to the wife or her nominee the Porsche model 1 motor vehicle registered in the name of D Pty Ltd at the wife’s sole expense and the wife shall indemnify D Pty Ltd and the husband and keep them indemnified in relation to any liability for duty, CGT, income tax or any other tax or liability arising as a result of this transfer;

   b.that the transfer of the Porsche model 1 motor vehicle referred to in the immediately preceding paragraph is a dividend to the wife under section 109C of the Income Tax Assessment Act 1936 and that the dividend is a fully franked dividend under section 109RC of the Income Tax Assessment Act;

   c.husband and wife shall do all acts and sign all documents necessary to transfer to the wife or her nominee the Volkswagen motor vehicle registered in the name of B Pty Ltd at the wife’s sole expense and the wife shall indemnify B Pty Ltd and the husband and keep them indemnified in relation to any liability for duty, CGT, income tax or any other tax or liability arising as a result of this transfer; and

   d.that the transfer of the Volkswagen motor vehicle referred to in the immediately preceding paragraph is a dividend to the wife under section 109C of the Income Tax Assessment Act1936 and that the dividend is a fully franked dividend under section 109RC of the Income Tax Assessment Act.

Cash payment

1. That by settlement date, the husband shall pay to the wife the amount of $3,474,669, such payment to be made by way of bank cheque made payable to the trust account of Barry.Nilsson.Lawyers.

2. That if the settlement sum referred to in the immediately preceding paragraph is not paid to the wife on the settlement date, the husband will pay interest on any outstanding daily balance at the rate prescribed by the Family Law Act 1975 and calculated on a daily basis from the settlement date until such payment is received by the wife in full.

Winters Group Structure

1. That by settlement date, the husband and wife shall do all acts and sign all documents prepared by the husband at his sole expense to transfer the wife’s interest in the Winters Group Structure to the husband or his nominee as follows:

   a.resign the wife as a director, secretary, trustee, principal or appointor of each entity within the Winters Group structure and the husband shall indemnify the wife and keep her indemnified in relation to any liability for duty, CGT, income tax or any other tax or liability arising as a result of this resignation;

   b.transfer to the husband or his nominee, the wife’s shareholdings in each entity within the Winters Group structure and the husband shall indemnify the wife and keep her indemnified in relation to any liability for duty, CGT, income tax or any other tax or liability arising as a result of this transfer;

   c.transfer and /or assign all of the wife’s rights, responsibilities, title and interest in any debit or credit loan accounts that she has with any entity within the Winters Group structure to the husband or his nominee and the husband shall indemnify the wife and keep her indemnified in relation to any liability for duty, CGT, income tax or any other tax or liability arising as a result of this transfer and/or assignment; and

   d.the wife shall use her best endeavours to renounce any interest or right the wife holds as a beneficiary of any trust within the Winters Group structure and the husband shall indemnify the wife and keep her indemnified in relation to any liability for duty, CGT, income tax or any other tax or liability arising as a result of this renouncement.

2. That the husband (and wife where necessary) shall do all things necessary and sign all such documents as are required to have:

   a.the husband indemnify and keep indemnified the wife in respect of all claims, debts and liabilities of whatsoever nature arising out of her interest and/or involvement in the Winters Group structure arising from anything done or which was failed to be done as and from 3 September 2012;

   b.the husband shall use his best endeavours to secure the release of the wife of all personal guarantees given by the wife on behalf of the Winters Group structure with the ANZ Bank or any other document by which she pledged security for the due performance of a financial commitment of the Winters Group structure and indemnify and keep indemnified the wife with respect to those guarantees;

   c.the husband shall indemnify and keep indemnified the wife against all liability of any nature arising in respect of the Winters Group Structure including all unpaid income tax, penalties, interest, fines assessed or later assessed against the wife in respect of income, distributions and/or dividends derived by her or deemed to have been derived by her from the Winters Group structure arising from anything done or which was failed to be done as and from 3 September 2012;

   d.the husband shall indemnify and keep indemnified the wife in relation to any liability in respect of any office held by her in the Winters Group Structure and without limiting the generality of this provision to include any liability arising from the settlement date in respect of any and all taxation payable as a consequence of the wife having been a shareholder or director of the said entities within the Winters Group Structure or payment in  respect of any income declared or payable to the wife but only arising from anything done or which was failed to be done as and from 3 September 2012.

Superannuation

1. The husband and wife, in their capacities as directors of the trustee company of the T Superannuation Fund (the Fund), shall do all acts and things necessary and sign all documents necessary by the settlement date to:

   a.comply with the obligations imposed upon the trustees of eligible superannuation plans under the Family Law Act 1975 and Family Law (Superannuation) Regulations including inter alia providing to the wife any documentation to which she is entitled pursuant to the legislation;

   b.roll out the wife’s member balance from the Fund with a value of $1,011,090 as at 28 February 2015 together with such share of the after tax income of the fund as is referable to the wife’s member entitlement (the growth adjustment) such member entitlement is agreed to be satisfied in part by the transfer in specie of the Estate in Fee Simple of the property situated at Y Street, Z Town in the State of New South Wales more accurately described as An Estate in Fee Simple in the County of AA, Parish of Z, being Lot … on …, Title Reference … at a value of $580,000 and a cash payment of $431,090 as at 28 February 2015 (but increased by the growth adjustment) and then adjusted by deducting from this amount all transition payments made to the wife after that date) no later than 7 days after the settlement date to an industry or self managed fund, as nominated by the wife at the wife’s sole expense;

   c.thereafter, and forthwith upon effecting the roll out to the wife, effect the wife’s resignation as a director and secretary of the trustee company and transfer the wife’s shares in the trustee company to the husband or his nominee pursuant to these Orders, provided that prior thereto she shall join with the husband in appointing any further director that he may nominate in writing;

   d.the husband and wife shall do all acts and sign all documents in order to either appoint a new trustee of the fund or to appoint new officeholders to the trustee company to ensure compliance by the fund with the relevant legislation;

   e.thereafter the husband shall retain the Fund with the husband to be responsible for the management and control of the Fund and the wife shall be removed as a member of the Fund;

   f.the husband indemnify the wife in relation to all liability arising under any loans and/or guarantees and/or indemnities given by the wife in relation to the Fund for which the wife may be liable arising from the course of the marriage and use his best endeavours to provide a release to the wife from such loans and/or guarantees and/or indemnities;

   g.that the husband indemnify the wife and keep her indemnified in relation to all actions, claims or demands by the Commission of Taxation in relation to any liability (including inter alia, income tax, capital gains tax, goods and services tax or fringe benefits tax) that the wife may incur by way of assessment, reassessment, penalties or interest or tax howsoever arising as a result of her having been a director or shareholder of the trustee company but only arising from anything done or which was failed to be done as and from 3 September 2012.

Liabilities

1. That unless otherwise provided for in these orders the husband shall be solely responsible for and meet payment of all liabilities in his sole name and shall indemnify the wife in relation to those liabilities.

2. That unless otherwise provided for in these orders the wife shall be solely responsible for and meet payment of all liabilities in her sole name and shall indemnify the husband in relation to those liabilities.

3. That except as otherwise provided for in these orders, the parties remain individually liable for any taxation liability that may accrue or has accrued up to and including the date of separation and shall continue to remain individually liable for any debt accrued thereafter and shall indemnify the other in respect of the same.  

General Retention and Release

1. That except as otherwise provided for in these orders, the parties shall each retain as his or her (as the case may be) own property absolutely all assets and/or financial resources (other than those dealt with herein) of whatsoever description and wherever situate, both real and personal property of which that party is the legal owner of and/or in the possession of and/or under the control of that party at the date of these Orders.

Miscellaneous

1. That each party do and procure the doing of all things and sign and procure the signing of all documents necessary to give full force and effect to the provisions of these Orders, and in the event that either party refuses or neglects to comply with any provision of these Orders within seven days of a written request of doing so, then by this Clause, the parties consent to a Registrar of the Family Court of Australia being appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all documents in the name of that party to give validity and operation to these Orders.

2. That save as otherwise provided in these Orders, the transferee spouse or the spouse receiving the benefit of any transaction pursuant to this these Orders, shall prepare the documentation necessary to give effect to the provisions of these Orders, at their cost and shall further be responsible for the payment of registration fees and all other fees in relation to the transfer of property in their name or their nominee.

3. That save as otherwise provided in these Orders, any duty payable on any transaction arising from these Orders, or any documents executed pursuant to these Orders, be paid by the transferee spouse or the spouse receiving the benefit of such transfer or transaction.

4. The parties will promptly comply with all requisitions issued by the Office of State Revenue in relation to these Orders or any instrument or document executed under these Orders or to put into effect the terms and conditions of these Orders. In default of either of the parties complying with any requisitions so issued within 14 days of the date upon which any requisition issues, the party not in default will be entitled to comply with any of the outstanding requisitions and recover from the other party in default the costs and outlays incurred in complying with any of the requisitions the cost to be calculated in accordance with the Family Law Rules on an indemnity basis.

1. That either party shall have liberty to apply to this Family Court of Australia on the giving of seven (7) days notice in writing to the other party in relation to the interpretation or enforcement of the terms and conditions hereof.

2. This is not an Order to which section 77A of the Family Law Act 1975 (Cth) applies.

3. Each party is solely responsible for and indemnifies the other against any liability to a third party existing at the day of the execution of these Orders, which was incurred in their name, or whether before or after the date of these Orders other than where the contrary is provided in the foregoing paragraphs. 

4. That all previous Orders be discharged except for:

   a.Orders 2(a) and (b) and 3 of the Orders of Justice Tree dated 17 June 2013, which shall remain in force and stand discharged upon settlement date; and

   b.Order 2(c) of the Orders of Justice Tree dated 17 June 2013, which shall remain in force and stand discharged by 29 June 2015 and contemporaneous with Order 8.

5. That the husband, the wife and the Second Respondent each bear their own costs of and incidental to these proceedings.

6. That all outstanding interim and final applications be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Winters & Winters & Anor 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 BRISBANE

FILE NUMBER: BRC9831/2012

Ms Winters

Applicant

And

Mr Winters

First Respondent

And

Ms BB
Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These property proceedings pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) were to proceed to a five day trial commencing on Monday next.

2. The applicant in the proceedings Ms Winters (whom I will refer to as the wife) and the first respondent Mr Winters (whom I will refer to as the husband) commenced cohabitation in either May 1991 on the wife’s case or July 1991 on the husband’s case.  They married in 1994 and separated, on the husband’s case, on 29 August 2012 and, on the wife’s case, on 3 September 2012.

3. There is no forensic need to determine the precise dates or to resolve those differences in dates between the parties.  It is clear that they agree, on either of their versions, that there was a period of cohabitation of more than 21 years.  The parties are divorced.

4. The wife is aged 62 years having been born in 1952 and the husband is 68 years of age having been born in 1947.  There are no children of the parties’ relationship.  This was the second marriage for each of them and they both have now adult children from earlier relationships.

5. Joined to their property proceedings is the second respondent, Ms BB, who was joined to the proceedings on the basis that the wife contended that certain property held by her (including shares in two companies) was held by her either on trust for the husband or on trust for a company or companies or family trust in which the husband has a beneficial interest.  Those claims were disputed by the husband.

6. In the result, the parties have been able to reach a final agreement to resolve all outstanding interim and final applications before this Court and have signed minutes of consent which they seek to have made to give effect to their compromise, and the parties made an application that I make those orders in Chambers. 

7. In support of that application the parties have provided the Court with a detailed letter setting out the relevant material facts and issues in dispute between the parties and which outlines the nature of their agreement.  That correspondence is supplemented with a detailed balance sheet detailing the areas of difference in terms of disputed property and values, and there is also provided to the Court a valuation of the parties’ self-managed superannuation and details of the trustee company of the fund. 

8. It can be seen from that correspondence and supporting documentation that there were significant issues between the parties concerning the property matters.  For example, if the wife succeeded on the case she was advancing as to the property interests of the husband, there would be a $1.4 million difference in the pool so identified.  To similar effect, there is or was a difference between the parties concerning taxation and realisation costs in relation to what is known as the Winters Group, with the wife conceding an amount of about $2.5 million with respect to that item whilst the husband was claiming an amount of some $6.8 million.

9. As is reflected in the balance sheet which sets out each parties’ contentions as to property interests, footnoted to relevant sources of evidence, there was ultimately a difference between the parties of net total interests, including property interests, add-backs, taking account of liabilities and including superannuation and financial resources.  The wife’s net total for property interests including superannuation amounted to some $14 million; whilst on behalf of the husband it was contended that the total was $9.5 million approximately. 

10. The parties to the proceedings, including the second respondent, have been well represented by experienced solicitors and counsel.  They attended a mediation conducted by the Honourable Rod Burr on 2 April 2015 at which the wife was represented by Mr Kirk QC and Mr Williams of counsel, who were instructed by Barry.Nilsson. Lawyers.  The husband was represented by the Honourable Stephen O’Ryan QC and Mr Richardson SC, instructed by HopgoodGanim; and the second respondent was represented by Mr Doolan of Barkus Doolan.  Whilst agreement was not reached at that mediation, the parties have continued to negotiate subsequent to it and obviously have now been successful in achieving a final agreement by way of compromise of their respective positions.

11. There is no issue that the circumstances of this case dictate the conclusion that it is just and equitable to make orders within the meaning of s 79(2) of the Act.

12. Having reviewed the material supplied to the Court to support the making of the orders; and fortified by the quality and experience of the legal representation of each of the parties in reaching the agreement (notwithstanding the wide variance between the parties as to the issues in dispute) I am satisfied that the orders ultimately reached by the parties are appropriate and just and equitable.  On that basis I make orders in terms of the consent orders giving effect to the parties’ agreement, which have been signed by them and are now initialled by me and are placed with the file.

13. For the record, I will include the correspondence to the Court dated 25 May 2015 with the attached signed minutes of consent and balance sheet and valuation of the parties’ self-managed superannuation fund as Exhibit 1.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 26 May 2015.

Associate:

Date:  26 May 2015