Wyatt and Wyatt - [2020] FamCA 406

FAMILY COURT OF AUSTRALIA

WYATT & WYATT

[2020] FamCA 406

FAMILY LAW – PROPERTY SETTLEMENT – Application by wife for alteration of property interests – assessment of contributions – marriage of forty-nine years – two children of the marriage – husband seeks alteration of property interests in his favour – where all assets owned wholly accumulated during the marriage and post-separation – wife assumed primary role as homemaker – husband made significant financial contributions –where husband exercised control of parties’ income and capital post-separation – orders made to effect an equal division of property and superannuation interests.

Family Law Act 1975 (Cth) ss 75(2), 79, 79(2), 79(4), 79(4)(a), 79(4)(c), 106A 117(2A), 117(2A)(f)
Family Law Rules 2004 (Cth)

Chang v Su (2002) FLC 93-117
Fields & Smith (2015) FLC 93-638
Grier & Malphas (2016) 55 Fam LR 107
In the Marriage of Kowaliw [1981] FLC 91-092
In the Marriage of Townsend (1995) FLC 92-569
In the Marriage of Weir (1992) FLC 92-338
Jabour & Jabour (2019) FLC 93-898
Kannis v Kannis (2002) 30 Fam LR 83
Mallet v Mallet (1984) 156 CLR 605
Nemeth & Nemeth (1987) FLC 91-844
Petruski & Balewa (2013) 49 Fam LR 116
Rosati v Rosati (1998) FLC 92-804
Stanford v Stanford (2012) 247 CLR 108
W & W (1997) FLC 92-723
Wallis & Manning (2017) FLC 93-759

APPLICANT:

Ms Wyatt

RESPONDENT:

Mr Wyatt

FILE NUMBER:

MLC

3480

2017

DATE DELIVERED:

5 June 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

11-12 November 2019 and

7 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney with Dr Smith

SOLICITOR FOR THE APPLICANT:

Efron & Associates

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Oner Family Law

Orders

Amended pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth)

All previous orders of the Court save for the orders made by the Court on 25 October 2017 be and are hereby discharged.
Notwithstanding order 1 hereof the husband shall be entitled to sell real property held personally and within companies and trusts referred to herein for the sole purpose of making the Payment to the wife under order 4 hereof and for that sole purpose and notwithstanding order 6 hereof the wife shall remove, at her expense, any caveat registered by her or on her behalf in respect of the real property being sold by the husband pursuant to this order.
Upon the Payment under order 4 hereof being made in full to the wife the orders made on 25 October 2017 be and are hereby discharged.
Within 60 days of these orders (‘the Date’), the husband pay to the wife the sum of $18,855,637.50 (‘the Payment’).
The husband and the wife sign all documents (including any authority required) to direct WV Lawyers or Ms WX of that office to release and pay to the wife all funds retained by her from the sale of the real property situate at and known as D Street Melbourne in the State…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wyatt and Wyatt

Details

AGLC: Wyatt and Wyatt [2020] FamCA 406
Case: [2020] FamCA 406
Decision Date: 5 June 2020

CaseChat Overview and Summary

This matter concerned orders made by Hartnett J in the Family Court of Australia, concerning the division of property between a husband and wife. The orders discharged previous court pronouncements and established a framework for the sale of various real properties, the transfer of interests in companies and trusts, and the payment of a significant sum from the husband to the wife. The orders also detailed the division of specific assets, including bank accounts, vehicles, and personal belongings, and addressed liabilities and indemnities between the parties.

The court was required to determine the specific terms of the property settlement between the parties, including the valuation and distribution of assets and the allocation of liabilities. Key issues included the husband's obligation to pay a substantial sum to the wife, the process for selling jointly and individually held real estate, the transfer of ownership of various companies and trusts, and the division of superannuation interests. The court also had to address the consequences of default by either party in meeting their obligations under the orders.

The court's reasoning, as reflected in the detailed orders, involved a comprehensive division of the parties' financial and property interests. The orders mandated the husband to pay a specific sum to the wife within 60 days, with provisions for the sale of real property to facilitate this payment. The wife was required to remove caveats to enable these sales. The orders also stipulated the transfer of various properties, company directorships, and trust interests, with detailed indemnities provided by the husband to the wife concerning liabilities associated with these transfers and her prior involvement in his entities. The division of superannuation interests, including a superannuation split from the Wyatt Superannuation Fund, was also a central element.

The final orders discharged previous court pronouncements and established a detailed scheme for the division of property and liabilities. The husband was ordered to pay the wife $18,855,637.50 within 60 days, with provisions for the sale of real property to satisfy this payment. The orders specified the transfer of various assets and interests between the parties, including real estate, company shares, and trust entitlements, and included extensive indemnities. In the event of the husband's default in making the payment, the wife was appointed as trustee for sale of specified real properties, with the proceeds to be applied towards the outstanding payment. The court also made provisions for enforcement and liberty to apply.

Orders

Orders of the court

Amended pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth)

All previous orders of the Court save for the orders made by the Court on 25 October 2017 be and are hereby discharged.

Notwithstanding order 1 hereof the husband shall be entitled to sell real property held personally and within companies and trusts referred to herein for the sole purpose of making the Payment to the wife under order 4 hereof and for that sole purpose and notwithstanding order 6 hereof the wife shall remove, at her expense, any caveat registered by her or on her behalf in respect of the real property being sold by the husband pursuant to this order.

Upon the Payment under order 4 hereof being made in full to the wife the orders made on 25 October 2017 be and are hereby discharged.

Within 60 days of these orders (‘the Date’), the husband pay to the wife the sum of $18,855,637.50 (‘the Payment’).

The husband and the wife sign all documents (including any authority required) to direct WV Lawyers or Ms WX of that office to release and pay to the wife all funds retained by her from the sale of the real property situate at and known as D Street Melbourne in the State of Victoria and one half of the those monies received by the wife be applied in reduction of the Payment.

Contemporaneously with the Payment:-

(a) the wife do all things and sign all documents necessary to transfer to the husband, at the husband’s expense, all of her right, title and interest in the real property situate at and known as B Street Suburb C in the State of Tasmania and the husband indemnify the wife against all payments and liability pursuant to any mortgage registered against the real property situate at and known as B Street Suburb C in the State of Tasmania and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind;

(b) the wife do all things and sign all documents necessary to transfer to the husband, at the expense of the husband, all of her right, title and interest in the real property situate at and known as E Street Suburb F in the State of Queensland and the husband indemnify the wife against all payments and liability pursuant to any mortgage registered against the real property situate at and known as E Street Suburb F in the State of Queensland and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.

(c) the wife remove, at her expense, any caveat registered by her or on her behalf against the real properties situate at and known as:-

(i) B Street Suburb C in the State of Tasmania;

(ii) H Street Suburb J in the State of Queensland;

(iii) K Street Suburb L in the State of Queensland;

(iv) M Street Suburb F in the State of Queensland;

(v) N Street Suburb O in the State of Queensland;

(vi) P Street Suburb Q in the State of Queensland;

(vii) R Street Suburb S in the State of Queensland; and/or

(viii) 10 T Street Suburb U in the State of Queensland.

(Collectively referred to as ‘the real properties’)

(d) the husband be entitled to retain his sole ownership of, and indemnify the wife against all outgoings, taxes and liabilities related to the real properties situate at and known as:-

(i) R Street Suburb S in the State of Queensland; and

(ii) M Street Suburb F in the State of Queensland.

The wife be entitled to retain her sole ownership of, and indemnify the husband against all outgoings, taxes and liabilities related to the real property situate at and known as V Street Suburb W in the State of Victoria.

The husband be entitled to retain his ownership and possession of, and indemnify the wife against:-

(a) all bank accounts held in his sole name;

(b) the motor vehicle 1 (registration …);

(d) the Aircraft (registration …);

(e) the identified painting;

(f) his Rolex watch; and

(g) any other property in his name.

The wife be entitled to retain her ownership and possession of, and indemnify the husband against:-

(a) all bank accounts held in her sole name; and

(b) any other property in her name.

10.

By consent, and within seven days of these orders, the husband cause to be delivered to the wife:-

(a) all rugs previously placed in the real property situate at and known as E Street Suburb F in the State of Queensland;

(b) the table lamps from the real property situate at and known as D Street Melbourne in the State of Victoria;

(c) all paintings previously held in the real property situate at and known as E Street Suburb F in the State of Queensland save for the identified painting;

(d) the baby photo gifted to the wife by her mother;

(e) the dinner sets gifted to the wife by her mother; and

(f) the white baby dress that the child Ms Y wore home from hospital

with the wife to be entitled to retain and have ownership of the said items.

11.

Within seven days of these orders, the parties do all things and sign all documents necessary to close any bank accounts held in the parties’ joint names, with any funds held in those accounts to be paid to the husband, noting such funds form part of the overall asset pool of the parties to be divided equally.

12.

Each party retain the sum of $225,000 of the trust monies disbursed to each of them from the Oner Family Law Practice Trust Account.

13.

Save as set out otherwise in these orders, each party be solely liable for any credit card; store card; taxation; debt recovery liability; and/or other personal debts standing in that party’s name together with any liability attaching to an asset the party is to retain pursuant to these orders and indemnify the other party in relation thereto.

14.

Contemporaneously with the Payment the parties do all things and sign all documents necessary, with such documents to be prepared by the husband at his sole expense, to cause the wife’s interest in the following entities (‘the husband’s entities’) to be transferred to the husband and/or his nominee:-

(a) Z Pty Ltd;

(b) AA Pty Ltd;

(d) the Wyatt Investment Trust;

(e) the Wyatt Family Trust;

(f) CC Pty Ltd; and

(g) DD Pty Ltd.

15.

Save as otherwise set out in these orders and contemporaneously with the Payment:-

(a) the wife resign as director, secretary, trustee, principal, appointor or any other position held by the wife in the husband’s entities and the husband indemnify the wife and keep her indemnified in relation to any liabilities or duty, capital gains tax, income tax, fringe benefits tax, goods and services tax, or any other tax or liability arising as a result of her resignation;

(b) the wife transfer to the husband or his nominee, the wife’s shareholding in the husband’s entities and the husband indemnify the wife and keep her indemnified in relation to any liabilities or duty, capital gains tax, income tax, fringe benefits tax, goods and services tax, or any other tax or liability arising as a result of her transfer;

(c) the wife forgive, transfer and/or assign all of the wife’s rights, responsibilities, title and interest in any debit or credit loan account that she has within the husband’s entities to the husband or his nominee, and the husband indemnify the wife and keep her indemnified in relation to any liabilities or duty, capital gains tax, income tax, fringe benefits tax, goods and services tax, or any other tax or liabilities arising as a result of the wife so acting;

(d) the wife do all acts and sign all documents necessary to renounce any interest or right the wife holds as a beneficiary of the husband’s entities and the husband indemnify the wife and keep her indemnified in relation to any liabilities or duty, capital gains tax, income tax, fringe benefits tax, goods and services tax, or any other tax or liability arising as a result of her renouncement; and

(e) the wife do all things and sign all documents necessary to remove the wife as an account holder or signatory, whether in a personal or office-holder capacity, from all bank accounts of whatsoever nature associated with the husband’s entities.

16.

Save as set out otherwise in these orders, the husband (and the wife where necessary) forthwith do all things and sign all documents necessary for:-

(a) the husband to 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 husband’s entities and/or arising from anything done or which has failed to be done;

(b) the husband shall use his best endeavours to secure the release to the wife of all personal guarantees given by her, if any, on behalf of the husband’s entities or any other document by which she pledged security for the due performance of a financial commitment of the husband’s entities and indemnify and keep indemnified the wife with respect to those guarantees and like security, if any; and

(c) the husband to indemnify and keep indemnified the wife in relation to any liability in respect of any office held by her in the husband’s entities and without limiting the generality of this provision to include any liability arising prior to and from the date of these orders 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 husband’s entities 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.

17.

Upon the Payment, the husband and wife in their capacities as trustees of the Wyatt Superannuation Fund do all acts and things and sign all documents necessary to transfer, by way of a superannuation split, 50 per cent of the shares owned by the Wyatt Superannuation Fund and with such shares being 50 per cent of the value of the total shareholding of the Wyatt Superannuation Fund to the wife’s self-managed superannuation fund.

18.

Upon completion of order 17 hereof, the husband and wife in their capacities as trustees of the Wyatt Superannuation Fund do all acts and things and sign all documents necessary to:-

(a) effect the wife’s resignation as a trustee and member of the Wyatt Superannuation Fund, with all requisite documents to be prepared by the husband at his sole expense, with the wife to relinquish any claims she may have to the balance of the Wyatt Superannuation Fund; and

(b) thereafter enable the husband to retain the balance of the Wyatt Superannuation Fund, with the husband to be responsible for the management and control of the Wyatt Superannuation Fund.

19.

In the event a liability issues of whatsoever nature from the Australian Tax Office or other like entity whether in the parties’ personal names, any of the husband’s entities names, or in the name of the Wyatt Superannuation Fund, as a result of the wife having lived in the real property situate at and known as D Street Melbourne in the State of Victoria, the Wyatt Superannuation Fund shall be solely liable for payment of such liability in full by the due payment date, with proof of payment to be made to the wife.

20.

Notwithstanding any default of the Payment by the Date the wife resign as a trustee and member of the Wyatt Superannuation Fund after receipt by her of the monies due under order 17 hereof and the husband indemnify the wife and be solely liable for any liability which may arise as a result of the wife’s resignation as a trustee and member of the Wyatt Superannuation Fund and/or the wife’s past involvement as a trustee and member of the Wyatt Superannuation Fund.

21.

Until the Payment, the husband be and is hereby restrained from doing any act or thing or signing any document that has the effect of:-

(a) withdrawing any amount from his member balance with the Wyatt Superannuation Fund;

(b) diminishing the value of his member balance with the Wyatt Superannuation Fund; and

save for the sole purpose of making the Payment.

22.

In default of the Payment by the Date and in addition to any further order herein, the husband and wife in their capacities as registered owners of the real properties or office holders in the husband’s entities who are registered owners of the real properties shall do all acts and things and sign all documents necessary to appoint the wife as trustee for sale of the real properties.

23.

Upon her appointment as trustee for sale under order 22 hereof the wife shall forthwith sell the real properties or so many of those real properties she shall in her absolute discretion deem necessary and upon the settlement of the sale of each of the real properties the proceeds of sale be applied as follows:-

(a) first, to pay all costs, commissions and expenses of the sale;

(b) second, to pay any outstanding rates, taxes or charges encumbering the title to those properties;

(c) third, to pay interest on so much of the Payment as is then outstanding in accordance with the Family Law Rules 2004 (Cth); and

(d) finally, the balance be paid to the wife in reduction of the Payment then owing save that when the payment has been fully made then any excess amount received at settlement shall be repaid to the husband.

24.

The husband pay and indemnify the wife in respect to any liability that may arise or be assessed, including any taxation payable by her or any of the husband’s entities, in the event of any sale consequent upon or arising from the default of the husband in making the Payment.

25.

There be liberty to apply to the chambers of the trial judge on short notice to seek further enforcement orders in the event that the real properties are unable to sell or remain unsold for more than three months after the husband’s default in making the payment.

26.

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 superannuation, work related entitlements and other property (including choses-in action) owned by or in the possession of such party as at the date of these orders;

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

(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) any joint tenancy of the parties is hereby expressly severed.

27.

Pursuant to s 106A of the Family Law Act 1975 (Cth) and in the event a default exists beyond seven days after written request from the other party to rectify same:-

(a) a Registrar of the Family Court of Australia be appointed to execute all documents in the name of the party in default and do all acts and things necessary to give validity and operation to these orders;

(b) the defaulting party is ordered to pay all reasonable costs incurred by the other party for the purposes of enforcing this order; and

(c) for the purposes of this order, an affidavit setting out the defaulting party’s failure to comply with the orders shall be sufficient evidence of default.

28.

Otherwise all extant applications are dismissed and the matter is removed from the list of active cases.

Note: This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth) by amending paragraph (5).

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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