Zendall and Zendall

[2013] FamCA 1147

FAMILY COURT OF AUSTRALIA

ZENDALL & ZENDALL [2013] FamCA 1147

FAMILY LAW – PROPERTY – Final orders by consent.

Family Law Act 1975 (Cth)

APPLICANT: Ms Zendall

RESPONDENT: Mr Zendall

FILE NUMBER: MLC 3285 of 2011

DATE DELIVERED: 14 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 14 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Brown SC

SOLICITOR FOR THE APPLICANT: Zolis Lawyers & Consultants

COUNSEL FOR THE RESPONDENT: Mr O’Shannessy

SOLICITOR FOR THE RESPONDENT: Belleli King & Associates

Orders

BY CONSENT IT IS ORDERED

1. That the Husband pay to the Wife the total sum of $1,880,000 (the total payment) by payment of $200,000 to Zolis Lawyers & Consultants within 14 days (the first payment) and the balance of $1,680,000 within 90 days of the first payment.

2. That contemporaneously with the total payment:

   (a)The Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her shares, right, title and interest (including the benefit of any loan account) in the real and personal properties situate at and known as:

   (i)B Street, Suburb C.

   (ii)D Street, Suburb E.

   (iii)F Pty Ltd.

   (iv)The Zendall Family Trust (save for the distribution of $917,000 to each party).

   (v)The Zendall Superannuation Fund.

   (vi)G Trust.

   (vii)H Street, Suburb I.

   (viii)The F Unit Trust.

   (i) to (viii) hereinafter called the "Husband's Entities and Properties".

   (b)The Wife resign any position or office in the Husband's Entities and Properties.

3. That the parties forthwith do all things and sign all documents to cause F Pty Ltd as Trustee of the Zendall Family Trust to file amended tax returns for the financial year ending 30 June 2012 to cause and effect the Husband and Wife to bear and pay equally the income tax payable as a consequence of the sale of the property known as and situated at J Street, Suburb K ("the J Street CGT").

4. That the parties instruct his and her accountants to provide such information and documents required to give effect to paragraph 3 above.

5. That save for the J Street CGT the Husband indemnify the Wife in regard to all payments and liability and all applicable rates and outgoings of or with respect to the Husband's Entities and Properties.

6. (a)That save for the J Street CGT the Husband indemnify the Wife in regard to any taxation and interest of or relating to any income distributed to her (including the sum of $51,200 in the FYE 2011 and $41,010 in the FYE 2010) from the Husband's Entities and Properties including the Zendall Family Trust.

   (b)That the Wife lodge outstanding returns for 2010 and 2011 within 7 days and 2012 within 7 days of the amended return relating to the J Street CGT being lodged.

7. That in the event that the whole of the total payment has not been made by the due date then the Husband and Wife sign all documents and do all things necessary to cause the real property known as B Street, Suburb C (the real property) to be forthwith sold altogether out of court ("the sale"), and upon completion of the sale, the proceeds of the sale be applied:

   (i)First to pay all costs, commissions and expenses of the sale;

   (ii)Secondly so much of the payment as is then outstanding together with interest thereon at the rate applicable to Family Law Act Orders adjusted monthly from the due date to the Wife;

   (iii)Thirdly the balance to the Husband.

8. That pending the payment or completion of the sale:

   (a)The Husband have the sole right to occupy the real property and that during such right of occupation the Husband pay all rates and taxes and like apportionable outgoings of the real property as they fall due;

   (b)The parties hold their respective interests in the real property upon trust pursuant to these Orders; and

   (c)Neither party encumber the real property without the consent in writing of the other party save to the extent necessary to comply with these Orders.

9. Paragraphs 9 to 17 of these Orders are binding upon F Pty Ltd the Trustee of the Zendall Superannuation Fund ("the Fund").

10. The base amount of $103,796 (calculated as cash and shares $234,430 less existing member balance of $130,634) be allocated to the Wife out of the interest of the Husband in the Fund (total to the Wife of $234,430).

11. Pursuant to Section 90MT(1)(a) of the Family Law Act 1975 ("the Act"), whenever a splittable payment becomes payable in respect of the superannuation interest of the Husband in the Fund, the Wife shall be entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2000 (Cth) ("the Regulations"), using the base amount and there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order.  

12. Order 11 has effect from the operative time.

13. The operative time for the purposes of Order 11 is four (4) business days after the date of service of these Orders upon the Trustee of the Fund.

14. That until the happening of any of the following:

    (a)The superannuation split to the Wife pursuant to these Orders be rolled over into a separate account in the name of the Wife in the Fund; or

    (b)The transfer or roll-over of the payment split into another superannuation fund nominated by the Wife;

    the Husband be and is hereby restrained by himself his servants or agents from executing a death benefit nomination in favour of any person or doing any other act which would render any part of his interest in the Fund a "non-splittable payment" within the meaning of regulation 12 or 13 of the Regulations.

15. That the Husband and Wife do all things and sign all documents to cause the Trustee to forthwith sell the shares owned by the Fund ("the fund shares") and convert same to cash.

16. That the parties do all things to cause the Wife's member balance following the implementation of these Orders to be rolled over to a complying superannuation fund as nominated by the Wife.

17. That the Wife resign any position in or with the Trustee.

18. That there be liberty to apply as to any difficulty with the implementation of these Orders.

19. That the Wife deliver to the Husband via the Husband's solicitor (Melbourne) the miniature video camera on or before 21 August 2013.

20. That the Husband make diligent search within 7 days for the Wife's Birth Certificate and when located forthwith deliver same to the Wife via her solicitors.

21. That within 14 days the Wife deliver to the Husband's solicitors the following:

    (i)All family photos and photo albums in her possession (the Wife's photos).

    (ii)That the Husband be at liberty to remove same and copy same at his expense and return the Wife's photos to her solicitors within a further 30 days.

    (iii)The Wife shall at her expense copy to the same size and to a professional photographic standard the 3 children's 20 X 24" circa 1995 children portraits and deliver to the Husband's solicitors within 14 days that copy and note of quality signed by the photographic studio.  

22. That within 14 days the Husband deliver to the Wife's solicitors: –

    (i)All family photos in his possession; and

    (ii)That the Wife be at liberty to remove same and copy same and return same to the Husband's solicitors within a further 30 days.

23. That within 30 days both parties attend the appropriate religious Court and thereafter do all things reasonably required for the parties to be provided with a divorce and the cost be equally shared by the parties.

24. That within 14 days the Wife deliver to each of the parties children each child's photo album for his or her own use and benefit absolutely.

25. That the Wife, within 14 days of transfer documents being delivered to her, transfer to the Husband or his nominee, at his expense, all her right title and interest in the motor car … in the Husband's possession.

26. That the Wife forthwith remove any Caveat lodged by her on any of the Husband's Entities and Properties.

27. That unless otherwise specified in these Orders and save for the purpose 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 other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the Husband) and the furniture, personal possessions and like chattels in the Wife's rental property be deemed to be in the possession of the Wife.

    (b)Monies standing to the credit of the parties in any joint bank account are to become the property of the Husband.

    (c)Each party retain any superannuation benefits belonging to or earned that party.

    (d)Insurance policies remain the sole property of the owner named thereon.

    (e)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 and more specifically the mortgage encumbering H Street, Suburb I shall be the sole responsibility of the Husband or his Entities.

    (f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

28. That all previous Orders and any arrears due thereunder be discharged. 

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

THE COURT NOTES

That pursuant to Section 81 of The Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

IT IS CERTIFIED BY THE COURT THAT

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS DIRECTED BY THE COURT 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 Zendall & Zendall 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 3285 of 2011

Ms Zendall

Applicant

And

Mr Zendall

Respondent

REASONS

1. In this matter I have had the benefit of reading the affidavit material upon which the parties rely.  Both counsel for the wife and counsel for the husband have opened their cases, and I have had the benefit of seeing the wife give her evidence and be cross-examined. 

2. This is a marriage of some years standing and of which there are three children.  I am aware that there were issues in relation to the identification of the property available for distribution and the value of that property.  Those issues have been resolved for the purposes of the agreement the parties have reached.  It is not necessary for me to know the exact nature of that resolution, suffice to say that the parties have agreed. 

3. I am told that the settlement represents a 55/45 split of what they have agreed is available for distribution in the wife’s favour, which is primarily a result of the difference in the respective income earning capacities of the parties. 

4. Both parties sought orders for property settlement and I am satisfied that it is just and equitable that there be orders, and that the orders that are proposed are just and equitable.

I certify that the preceding four (4) paragraphs are a true copy of the reasons of the Honourable Justice Macmillan delivered on 14 August 2013.

Associate: 

Date:  18 September 2014