Wither and Wither & Anor

[2024] FCWA 243

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: WITHER and WITHER & ANOR [2024] FCWA 243

CORAM: TYSON J

HEARD: [REDACTED]

DELIVERED : Ex tempore

FILE NO/S: 4906 of 2019

BETWEEN: MS WITHER

Applicant

AND

MR WITHER

First Respondent

AND

MRS WITHER SENIOR

Second Respondent

Catchwords:

FAMILY LAW - PRACTICE AND PROCEDURE - Form of proposed orders - Where reasons delivered making orders altering the existing legal and equitable interests of the parties and proposing an overall percentage division of property pool - Where practical effect of proposed division considered, including a proposed superannuation splitting order and a lump sum payment on terms - Where parties given opportunity to propose an agreement as to form of orders and require procedural fairness to be afforded to trustee of superfund - Where parties did not agree as to form of orders - Where parties filed no joint minute and their own proposed minute as to form of orders - Submissions provided as to the form of the orders to give effect to the reasons - Court required to determine form of orders to give effect to reasons - Case turns on own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Senior Counsel A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Did not participate

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Wither and Wither & Anor [2024] FCWA 177

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wither and Wither & Anor has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

TYSON J:

1[In] August 2024, I delivered reasons for judgment,[1] ("Reasons") in respect of financial proceedings between the applicant wife, the respondent husband, and the second respondent, the husband's mother, [Mrs Wither Senior]. In the Reasons, I observed that the proceedings had been complicated by the question as to whether the husband owed a debt to Mrs Wither Senior and the wife's application to set aside a 2014 and 2017 Acknowledgment of Debt and Irrevocable Authority executed by the husband and two 2019 Demands executed by Mrs Wither Senior, pursuant to section 106B of the Family Law Act 1975 (Cth) ("the Act").

[1] Wither and Wither & Anor [2024] FCWA 177 ("Reasons").

2I found that it was appropriate to exercise discretion to set aside the transactions in accordance with the wife's application.[2] I found that: (1) the net property and superannuation entitlements of the husband and the wife amounted to $1,831,136;[3] (2) in light of the property of the parties', it was just and equitable to make an order by way of alteration of their property interests;[4] (3) an assessment of contributions favoured the husband, and his contributions should be assessed at 65% and the wife's contributions assessed at 35%;[5] and (4) an assessment pursuant to section 75(2) of the Act favoured the wife and made an adjustment of 25% in her favour.[6]

[2] Reasons, at [152].

[3] Reasons, at [189].

[4] Reasons, at [190].

[5] Reasons [194].

[6] Reasons [221].

3I concluded a just and equitable outcome in the circumstances provided for the wife to receive 60% of the parties' net property and superannuation and the husband receive 40%.[7] To achieve the division, it was agreed each party was to retain certain assets and liabilities, as set out at [230] and [231] of the Reasons. I found it was just and equitable to make orders by way of a superannuation splitting order in favour of the wife, which required a base amount to be allocated to her of $102,957.

[7] Reasons [224].

4I proposed orders be made, subject to the parties advising the Court as to the form of the orders and the Court being satisfied that procedural fairness had been afforded to the trustee of the husband's fund. The husband was to retain the [boat] and [Motor vehicle A], and the wife was to receive funds held in joint accounts, which were then to be closed. Those entitlements were reflected at [230] and [231] of the Reasons.

5I found the husband was then required to pay to the wife $740,765 to give effect to the division and sought submissions as to the form of the orders to give effect to the Reasons.

6Following publication of the Reasons, the proceedings were adjourned to today, to allow the parties to confer as to the form of the orders. Each party has filed their own minute, and, as a result, time has been taken this morning to clarify, effectively, what orders are agreed to give effect to the Reasons.

7In relation to the orders which are proposed to be pronounced, firstly, the introductory recital in the wife's minute,[8] reflect the provisions of s 81 of the Act. In my view, that is an appropriate introduction to the orders and will be included. The balance of the recitals in the wife's minute are appropriate, agreed to be accurate by the husband and will be included.

[8] Filed [in] September 2024.

8I intend to make an order in terms of paragraph 1 of the wife's minute because that reflects the Reasons in which I was satisfied it was appropriate to set aside the instruments as identified, and an order will be made in those terms.

9In relation to paragraphs 2 and 3 of the wife's minute, they provide that within seven days, all monies held in joint bank accounts are to be paid to the wife and the amounts closed. The husband proposes that the wife receive specified amounts insofar as they were reflected in the Reasons at [231]. In the Reasons I found at [229] that to provide the wife with her entitlements, she would receive the funds held in the joint accounts, which would then be closed. In my view, the form of the orders proposed by the wife reflect the Reasons. I will make orders in terms of paragraphs 2 and 3.

10I am otherwise satisfied that an order should be made in terms of paragraph 4. There is an agreement between the parties in relation to the timing of the payment and the quantum of the payment. I am not satisfied that an order should be made in relation to paragraph 5 at this time. In the event that there is non-payment in accordance with the orders, the parties have liberty to apply, and any such further issues arising can then be dealt with.

11In relation to paragraph 6, the wife seeks a raft of orders in relation to the sale of [Property B] in the event the husband fails to make the payment. I observed and made clear in the Reasons that if payment was not made or if the husband elected to sell Property B, then it may be necessary for the property to be sold. At this stage, I am not persuaded to make the orders in terms set out. In the absence of payment being made, then there is a liberty to apply.

12Further, in the Reasons, I made clear that if Property B was to be sold, that the sale price, the costs of sale, the capital gains tax and any capital losses would also need to be taken into account. For those reasons, if Property B was to be sold, I would not be satisfied that an order should be made in terms of paragraph 6.6.4 as sought by the wife. The Reasons made plain that the amounts would be adjusted to reflect those actual costs.

13For the reasons made clear in the exchange during the course of the hearing this morning, orders will be made in terms of paragraphs 7 to 10, which give effect to the allocation of a base amount, noting that procedural fairness has been afforded to the trustee of the husband's fund, who has confirmed those form of orders.

14In relation to paragraph 11, on the basis the husband does not seek those orders, which effectively operate for his benefit, I will not make orders in those terms.

15In relation to paragraph 12, the order simply reflects the husband having a liability in relation to assets that he is to retain in relation to the trusts. In my view, those orders are appropriate, and will be made.

16There is no issue now between the parties in relation to paragraph 13. The only amendment that I propose is that paragraph 13.10 be amended to note that the husband retaining his superannuation entitlements is subject to the superannuation splitting order, that is being made today.

17Otherwise, there will be an order made in terms of paragraph 14, save that, I propose, 14.2 be deleted, in circumstances where [Business A] has been de-registered.

18There will be an order in terms of paragraph 15. There will be an order that in relation to paragraph 16, save that I am not satisfied, that an order should be made in terms of 16.4 as indicated in the Reasons. If Property B is to be sold, the capital gains tax is to be met out of the sale proceeds, and will not be subject to the husband having sole responsibility and indemnifying the wife.

19In my view, paragraph 17 is otiose. I decline to make an order in those terms.

20Paragraphs 18 to 20 are standard and procedural, and I will make orders in those terms.

21There should be standard orders to dismiss all interim orders, dismiss outstanding applications, and return exhibits and subpoenaed documents, subject to any appeal.

Orders

UPON THE COURT NOTING THAT:-

Pursuant to Section 81 of the Family Law Act 1975 (Cth) ("the Act") and with the intent that this Order shall, as far as practicable finally determine the financial relationship between the parties and thereby avoid further proceedings, to the intent that this Order shall operate in full and final settlement satisfaction and redemption of each party's claim for settlement of property and spousal maintenance, the following Orders are made, by way of alteration of property interests pursuant to Section 79 of the Act.

[Family Trust D]

(a)The First Respondent, [MR WITHER], ("the Husband") is the sole Trustee of the [Family Trust D].

(b)The Trust Deed is dated [in] July 2007, but the date of signing bears no date.

(c)The parties Children are the beneficiaries of the Trust.

(d)The Husband is the appointor and guardian of the Trust.

(e)The Husband, in his capacity as Trustee, is the registered proprietor of the property [Property B] located at [redacted] ("[Property B]").

The Husbands Interest in [Superannuation Fund A]

(f)[Company C] is the Trustee ("the Trustee") and issuer of Superannuation Fund A.

[Business A]

(g)Business A was deregistered [in] October 2022.

[Family Trust B]

(h)Family Trust B only has an interest in the [Company B Group]. The Husband is the sole Trustee of the Family Trust B.

IT IS ORDERED THAT:-

1.Pursuant to section 106B of the Family Law Act 1975 (Cth):

(a)The instrument styled "Acknowledgement of Debt and Irrevocable Authority" dated 30 September 2014 and signed by MR WITHER;

(b)The instrument styled "Acknowledgement of Debt and Irrevocable Authority" dated 6 August 2017 and signed by MR WITHER;

(c)The demand dated 18 February 2019 in respect of the instrument dated 30 September 2014 and signed by [MRS WITHER SENIOR]; and

(d)The demand dated 18 February 2019 in respect of the instrument dated 6 August 2017 and signed by MRS WITHER SENIOR;

Be set aside.

2.Within 7 days of the date these Orders are published to the parties or their solicitors, the parties shall do all things and sign all documents necessary to transfer to the Applicant, [MS WITHER], ("the Wife") all monies held in the following bank accounts in their joint names:

(a)[Bank A account (3) [account number redacted]]; and

(b)[Bank A account (4) [account number redacted]].

3.Forthwith on compliance with paragraph 2 of these Orders, the parties do all things and sign all documents necessary to close all jointly held bank accounts.

4.Within 21 days of extraction of this Order, the Husband pay to the Wife's nominated bank account the sum of $740,796 ("the Payment").

5.Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the Husband (member) interest in Superannuation Fund A, the Trustee shall pay to the Wife (non-member) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 a base amount of $102,957 and there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order provided that such base amount shall not exceed the value of the interest determined under section 90XT(2).

6.The Husband in his capacity as a member of Superannuation Fund A forthwith, do all acts and things and sign all documents necessary to cause the Trustee of Superannuation Fund A to:

(a)Calculate in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Wife pursuant to this Order; and

(b)Pay the entitlement whenever the Trustee makes a splittable payment within the meaning of section 90XE of the Act on behalf of the Husband from the Husband's member account in Superannuation Fund A.

7.The operative time for the superannuation splitting Order is four days after the service of sealed final Orders on the Trustee.

8.Having been accorded procedural fairness these orders bind the Trustee of Superannuation Fund A.

9.The Husband pay and indemnify the Wife with respect to all debts and liabilities of the Family Trust D and /or Family Trust B ("the Trusts"), including but not limited to the:

(a)Loans secured by mortgages registered, including [mortgage number redacted] on Property B;

(b)All local authority and Water Corporation rates, taxes and charges on Property B;

(c)Charges for utilities connected to Property B;

(d)Premiums for the continued insurance of Property B; and

(e)Any tax which is currently unpaid, or which is in future assessed as payable by the Wife on payments received by the Wife or deemed to have been received by the Wife from the Family Trust D.

10.Any interest that the Wife may have in the following, other than as provided in this Order, shall vest in the Husband:

(a)The Husband's [redacted] business;

(b)Property B;

(c)Bank accounts in the Husband's sole name;

(d)The [Motor vehicle A] currently in the Husband's possession [licence plate number redacted], (with the transfer to occur at the Husband's expense and within 30 days of the date this Order);

(e)The [Motor vehicle C] currently in the Husband's [licence plate number redacted] possession (with the transfer to occur at the Husband's expense and within 30 days of the date this Order);

(f)Trailer [licence plate number redacted] currently in the Husband's possession (with the transfer to occur at the Husband's expense and within 30 days of the date this Order);

(g)Furniture and chattels and tools and jewellery in the Husband's possession or control;

(h)Family Trust B;

(i)Shareholdings registered in the Husband's sole name including his interest in the Company B Group; and

(j)Any superannuation and employment entitlements to which the Husband is entitled, subject to the superannuation splitting orders pursuant to paragraphs 5-8 of these Orders.

11.Any interest that the Husband may have in the following, other than as provided in this Order, shall vest in the Wife:

(a)[The wife's Business B];

(b)Bank accounts in the Wife's sole name;

(c)Furniture and chattels in the Wife's possession or control;

(d)Shareholdings or investments registered in the Wife's name; and

(e)Any superannuation and employment entitlements to which the Wife is entitled.

12.Unless otherwise provided in this Order, the Wife to be solely responsible for any and all debts in her sole name, and the Wife is to indemnify the Husband and keep him indemnified against said debts, including but not limited to:

(a)any credit card debts in her sole name; and

(b)any taxation liabilities in her sole name.

13.The Husband is to be solely responsible for any and all debts in his sole name and for all entities in which he has an interest and or controls and the Husband is to indemnify the Wife and keep her indemnified against said debts, including but not limited to:

(a)any credit card debts in his sole name;

(b)any taxation liabilities in his sole name;

(c)any personal loans in his sole name; and

(d)all entities in which he has an interest or control, including all division 7A loans.

14.These Orders bind the Husband in his capacity as the sole Trustee of the Family Trust D.

15.The parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to these Orders.

16.The parties have liberty to apply to the Family Court of Western Australia in relation to implementation of these Orders, including in the event of the Husband's default of the obligations pursuant to paragraph 4 of these Orders.

Costs

17.In the event either party wishes to make an application as to costs, then within 21 days they are to file and serve a Minute of Orders Sought (in relation to the issue of costs), and written submissions in support of their application for costs, limited to 15 pages and no more than 5 annexures.

18.Within 21 days of receipt of an application as to costs as referred to above, the other party file and serve a Minute of Orders Sought (in relation to the issue of costs) and written submissions in support limited to 15 pages and no more than 5 annexures.

19.The other party have leave to file a brief response to the other party's submissions (limited to a maximum of 5 pages) within 14 days of receiving the documents referred to in the preceding order.

20.The issue of costs otherwise be determined in chambers, in the absence of any written request by the parties, to be made within 2 calendar months of the date of these orders.

Procedural

21.All outstanding interim orders, and applications in these proceedings be and are hereby dismissed.

22.All subpoena documents be returned or destroyed in accordance with the request from the named subpoenaed person or entity.

23.In relation to material tendered as an exhibit into evidence in these proceedings:

(a)All Parties must collect the physical exhibits tendered by them (their exhibits), from the Chambers of the Honourable Justice Tyson, at least 28 days, and no later than 42 days, from the date hereof;

(b)All parties must contact the Chambers of the Honourable Justice Tyson to arrange the collection of their exhibits; and

(c)In default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.

24.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 22 and 23 do not apply.

25.The proceedings otherwise be dismissed.

These reasons are the reasons for decision I delivered on [date redacted], edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Associate

21 OCTOBER 2024