FEDERAL CIRCUIT COURT OF AUSTRALIA

Transcription

1 FEDERAL CIRCUIT COURT OF AUSTRALIA BAINES & BAINES [2016] FCCA 1017 Catchwords: FAMILY LAW Property Application for property settlement partial property settlement where husband transferred real estate to wife as partial property settlement where husband paid $295, to wife as partial property settlement contributions of the parties whether any adjustments should be made under Family Law Act 1975 (Cth) s.75(2) superannuation superannuation splitting order where parties concede that superannuation assets should be equally divided form of Superannuation Splitting Order Cross-Split Order. EVIDENCE Fresh evidence where Applicant s lawyers submitted an amended balance sheet annexed to written submissions three weeks after the close of the proceedings where no leave sought to reopen whether amended balance sheet should be considered. PRACTICE AND PROCEDURE Appointment of Registrar to sign documents under Family Law Act 1975 (Cth), s.106a Registrar of the Federal Circuit Court of Australia should be appointed and not a Registrar of the Family Court of Australia. Legislation: Family Law Act 1975 (Cth), ss.4, 79, 80, 90MT, 90MZD, 106A Income Tax Assessment Act 1997 (Cth), ss Family Law (Superannuation) Regulations 2001 (Cth), rr.13, 14F Superannuation Industry (Supervision) Regulations 1994 (Cth), pt.7a, rr.1.03, 7A.03, 7A.06, 7A.11, 7A.12 Federal Circuit Court Rules 2001 (Cth), pts.22, 24 Cases cited: Black v Kellner (1992) 15 Fam LR 343; FLC Hickey & Hickey (2003) 30 Fam LR 355; FLC ; [2003] FamCA 395 Milankov & Milankov (2002) 28 Fam LR 514; FLC ; [2002] FamCA 195 S & S [2004] FamCA 906 Stanford v Stanford (2012) 47 Fam LR 481; FLC ; [2012] HCA 52 Applicant: MR BAINES Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 1

2 Respondent: MS BAINES File Number: SYC 4275 of 2011 Judgment of: Judge Scarlett Hearing dates: 4-7 March 2014 Date of Last Submission: 2 May 2014 Delivered at: Sydney Delivered on: 11 May 2016 REPRESENTATION Counsel for the Applicant: Solicitors for the Applicant: Counsel for the Respondent: Solicitors for the Respondent: Mr Blackah Warren McKeon Dickson Mr Campton SC Gordon & Barry Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 2

3 THE COURT NOTES THE FOLLOWING DEFINITIONS FOR THE PURPOSE OF THESE ORDERS A. Property B property means the property at Property B in the State of New South Wales and being the property described in title reference (omitted) and which is registered in the name of the Applicant Husband. B. Property O property means the property at Property O, Sydney in the State of New South Wales and being the property described in title reference (omitted) and which is registered in the name of the Husband. C. Property C property means the property at Property C in the State of New South Wales and being the property described in title reference (omitted) and which is registered in the name of (omitted) Pty Ltd. D. (business omitted) Pty Ltd means (business omitted) Pty Ltd, ABN (omitted), being a company registered in the State of New South Wales and having its registered office at Property K in the State of New South Wales and in respect of which the Husband and the Wife are the Directors and the Husband is the Secretary and the sole Shareholder. E. Husband means Mr Baines also known as Mr Baines who was born on (omitted) F. Wife means Ms Baines who was born on (omitted) G. (omitted) Pty Ltd means (omitted) Pty Ltd, ABN (omitted), being a company registered in the State of New South Wales and having its registered office at Property K in the State of New South Wales and in respect of which the Husband and the Wife are the Directors, the Husband is the Secretary and the Shareholders are Mr Baines Superannuation fund as to 311,182 Class A shares, the Husband as to 132,982 Ordinary Fully Paid Beneficially Held Shares, the Wife as to 38,305 Ordinary Fully Paid Beneficially Held Shares and the Baines Superannuation Fund as to 500,368 Ordinary Fully Paid Beneficially Held Shares. H. Property A property means the property at Property A in the State of New South Wales being the property described in title reference (omitted) and which is registered in the name of the Husband. Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 3

4 I. Property K property means the property at Property K in the State of New South Wales being the property described in title reference (omitted) and which is registered in the name of the Husband. J. Property M mortgage means the mortgage from the Respondent Wife to the (omitted) Bank registered on the Property M property and being registered mortgage number (omitted). K. Property M property means the property at Property M in the State of New South Wales being the property described in title reference (omitted) and which is registered in the name of the Wife. L. Property E property means the property at Property E in the State of Queensland being the property described in title reference (omitted) which is registered in the name of the Husband. M. Parties means the Husband and the Wife. N. Property P mortgage means the mortgage from the Wife to the (omitted) Bank registered on the Property P property being registered mortgage number (omitted). O. Property P property means the property at Property P in the State of New South Wales being the property described in title reference (omitted) and which is registered in the name of the Wife. P. Property R mortgage means the mortgage from the Wife to the (omitted) Bank registered on the Property R property being registered mortgage number (omitted). Q. Property R property means the property at Property R in the State of New South Wales being the property described in title reference (omitted) and which is registered in the name of the Wife. ORDERS PART A NON SUPERANNUATION ORDERS Company (1) Within fourteen (14) days of the date of these Orders and prior to the implementation of Order (9) of the Superannuation Orders, the Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 4

5 Husband and Wife shall do all acts and things and sign all documents necessary: (a) For the Husband to resign all directorships, positions and offices in (omitted) Pty Ltd; (b) To transfer to the Wife all of his Ordinary Shares in (omitted) Pty Ltd. (2) Subject to the Husband complying with Order (1) above, the Wife shall from the date of implementation of Order (1) indemnify and keep indemnified the Husband against all liability of whatsoever nature: (a) By reason of the Husband having been employed as a Director, Officer or Shareholder of (omitted) Pty Ltd; and Real Estate (b) By reason of the Husband having been involved in any business operated by (omitted) Pty Ltd. (3) Within twenty-eight (28) days of the date of these Orders, the Husband shall do all acts and things and sign all documents necessary to: (a) discharge the Property M mortgage; (b) discharge the Property P mortgage; (c) discharge the Property R mortgage; and (d) cause those discharges to be registered on the title to the said properties. (4) Pending compliance with Order (3) above, the Husband shall do all acts and things and sign all documents necessary to indemnify the Wife and keep her indemnified with respect to the Property M mortgage and shall pay all mortgage instalments relating to the said Property M mortgage until such time as the discharge of the said mortgage is registered. (5) Contemporaneously with the Husband complying with Order (3) above the Wife shall do all acts and things and sign all documents necessary to withdraw any Caveat lodged by her on the: Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 5

6 (a) Property B property; (b) Property O property; (c) Property A property; (d) Property K property; and (e) Property E property. Other (6) Within twenty-eight (28) days of the date of these orders, the Husband shall pay to the Wife the cash sum of $303, (7) In default of the Husband complying with either Order (3) or Order (6) above, the Husband shall do all acts and things and sign all documents necessary to sell the Property B property for the best price reasonably obtainable in the following manner: (a) The Husband shall authorise the Wife to instruct such lawyer as is necessary to have the conduct of the sale on behalf of both parties. (b) The Wife shall appoint such real estate agent (hereinafter referred to as the agent ) as is necessary to have the conduct of the sale. (c) The Property B property shall be listed for sale by public auction within six (6) weeks of the date of appointment of the agent. (d) The reserve price for the purpose of such auction shall be such price as is nominated by Mr G of (omitted) Valuations. (e) The agent shall, if requested by the Wife at a date three (3) months after the date upon which the Property B property is first listed in accordance with Order (7)(c) and thereafter at three (3) monthly intervals until the Property B property is sold, nominate a sale price other than the originally nominated sale price and being such price as is determined by the Wife. (f) The Husband shall cooperate in every way with the agent, including but not limited to: Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 6

7 (i) Making the key available to the agent; (ii) Allowing inspection of the Property B property at all reasonable times requested by the agent; (iii) Not taking any step to hinder or prevent a sale being effected; (iv) Ensuring the said Property B property including the grounds is in a neat and clean condition at the time of inspection by the agent and any prospective purchaser; and (v) Signing all documents requested by the agent in relation to the listing of the said property, other than a Contract or Agreement for Sale, which has not been authorised by the lawyer referred to in Order (7)(a). (g) In the event that bidding at the auction does not reach the reserve price, the Wife may negotiate with the highest bidder or any other interested person and effect the sale of the said property at a price which is not more than 10% below the reserve price or such other price as the Wife shall nominate. (h) In the event that the Property B property is not sold by public auction within eight (8) weeks from the date of appointment of the agent, the Husband shall do all acts and things and sign all documents necessary and as requested by the Wife so as to list the said property for sale by private treaty with the agent appointed in accordance with Order (7)(b) above. (i) (j) The sale price at which the said property shall be listed is to be such price as the Wife shall nominate. If the said property remains unsold, the parties must do all acts and things and sign all documents necessary to re-list the said property immediately for sale by public auction again on a date nominated by the agent and at such auction there is to be no reserve price unless otherwise nominated by the wife in writing. (8) Upon settlement of the sale of the Property B property, the proceeds of sale are to be paid in the following manner and priority: Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 7

8 (a) all costs and expenses of sale, including legal costs and disbursements, agent s commission, advertising expenses and auction expenses; (b) the amount required to pay all municipal and water rates outstanding with respect to the said property; (c) the amounts payable to the wife as prescribed by Orders (3) and (6) above; and (d) the balance to the Husband. (9) In the event that the proceeds of sale of the Property B property are insufficient to meet the amounts payable to the Wife under Order (3) or Order (6), the Husband must do all acts and things and sign all documents necessary to sell the Property A property for the best price reasonably obtainable in the following manner: (a) The Husband shall authorise the Wife to instruct such lawyer as is necessary to have the conduct of the sale on behalf of both parties. (b) The Wife shall appoint such real estate agent (hereinafter referred to as the agent ) as is necessary to have the conduct of the sale. (c) The Property A property shall be listed for sale by public auction within six (6) weeks of the date of appointment of the agent. (d) The reserve price for the purpose of such auction shall be such price as is nominated by Mr G of (omitted) Valuations. (e) The agent shall, if requested by the Wife at a date three (3) months after the date upon which the Property A property is first listed in accordance with Order (9)(c) and thereafter at three (3) monthly intervals until the said property is sold, nominate a sale price other than the originally nominated sale price and being such price as is determined by the Wife. (f) The Husband shall cooperate in every way with the agent, including but not limited to: (i) making the key available to the agent; Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 8

9 (ii) allowing inspection of the said property at all reasonable times requested by the agent; (iii) not taking any step to hinder or prevent a sale being effected; (iv) ensuring the said property including the grounds is in a neat and clean condition at the time of inspection by the agent and any prospective purchaser; and (v) signing all documents requested by the agent in relation to the listing of the said property, other than a Contract or Agreement For Sale, which has not been authorised by the lawyer referred to in Order (9)(a). (g) In the event that bidding at the auction does not reach the reserve price, the Wife may negotiate with the highest bidder or any other interested person and effect the sale of the said property at a price which is not more than 10% below the reserve price or such other price as the wife shall nominate. (h) In the event that the said property is not sold by public auction within eight (8) weeks of the date of appointment of the agent, the Husband shall do all acts and things and sign all documents necessary and as requested by the Wife so as to list the said property for sale by private treaty with the agent appointed in accordance with Order (9)(b) above. (i) (j) The sale price at which the said property shall be listed is to be such price as the Wife shall nominate. If the said property remains unsold, the parties must do all acts and things and sign all documents necessary to re-list the said property immediately for sale by public auction again on a date nominated by the agent and at such auction there is to be no reserve price unless otherwise nominated by the wife in writing. (10) Forty-eight (48) hours prior to settlement of the sale of the Property A property, the Husband must vacate the said property and leave it in good order and condition. (11) Upon the settlement of the sale of the Property A property the proceeds of sale are to be paid in the following manner and priority: Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 9

10 (a) all costs and expenses of sale, including legal costs and disbursements, agent s commission, advertising expenses and auction expenses; (b) the amount required to pay all municipal and water rates outstanding with respect to the said property; (c) the amounts payable to the Wife as prescribed by Order (3) and (6) above; and (d) the balance to the Husband. (12) In the event that any amount remains payable to the Wife in accordance with these Orders the Husband must pay interest on the amount from the date it is payable, being twenty-eight (28) days from the date of these Orders, at the rate prescribed by Part 22 of the Rules to the date of payment. (13) Within fourteen (14) days of the date of these Orders or at such date as may be determined by the Wife the Husband must deliver to the Wife the piano currently in his possession. (14) Unless otherwise specified in these Orders: (a) Each party shall be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession or title of such party as at the date of these Orders; (b) Each party shall be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled in accordance with these Orders; and (c) Each party shall be solely liable for and indemnify the other against any liability in their respective names including but not limited to credit cards and personal loans. (15) The Husband and Wife must do all acts and things and sign all documents necessary to give effect to these Orders. (16) In default of either party doing any act or thing or signing any document or executing any instrument necessary to give effect to these Orders, the Registrar of the Federal Circuit Court of Australia at Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 10

11 Sydney is hereby appointed to sign all such documents and execute all such instruments in the name of the defaulting party and the defaulting party will be responsible for the whole costs of any such Application by the non-defaulting party to the Registrar of this Court. PART B SUPERANNUATION ORDERS IN MAKING THESE ORDERS THE COURT NOTES; A. The Mr Baines Superannuation Fund ABN (omitted) ( the Super Fund ) is a self-managed superannuation fund listed by the Australian Taxation Office on the Super Fund Lookup Website (omitted) as a complying superannuation fund. B. The Super Fund was established under a Deed of Trust dated 1 August The rules governing the operation of the Super Fund are contained in the Deed of Trust ( the Rules ). C. The Husband and the Wife are the only members of the Super Fund. D. The trustee of the Super fund is a corporation, (business omitted) Pty Ltd (ACN (omitted)) ( the trustee corporation the trustee ) and the Husband and wife are the Directors of that corporation. E. The Husband has the following member accounts in the Super Fund and in accordance with s.90mt(2) of the Family Law Act 1975 as at 30 June 2013 the respective balance was: a. Accumulation $2,087,950 b. Accumulation (Tax free) $1,360,495 Total $3,448,444 F. The Wife has the following member account in the Super Fund and in accordance with s.90mt(2) of the Family Law Act 1975 as at 30 June 2013 the respective balance was: a. Accumulation $874,320 b. Accumulation (Tax Free) $1,234,588 Total $2,108,908 Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 11

12 G. That the requirements of procedural fairness in accordance with s.90mzd of the Family Law Act 1975 have been observed on the basis that the parties are the directors of the trustee corporation of the Super Fund. H. Baines Superannuation Fund means Baines Superannuation Fund, ABN (omitted), created by Deed dated 18 July 2012 and in respect of which (omitted) Investments is the trustee. Superannuation Orders IT IS ORDERED: Wife to transfer her entire interest in the Super fund to the Husband for an Instant (Splitting Order 1) (17) That in accordance with paragraph 90MT(1)(b) of the Family Law Act 1975: (a) the Husband is entitled to be paid the specified percentage, being 100% out of the Wife s Super Fund interest; and (b) the Wife s entitlement to the amount in her member account (and the entitlement of any other person to payments out of the Wife s interest) in the Super Fund, is correspondingly reduced. (18) That the Husband and Wife in their capacity as directors of the trustee corporation of the Super Fund, shall do all such acts and things and have signed all such documents as may be necessary to: (a) calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Husband in clause 1 of this Order; and (b) pay the entitlement whenever the trustees make a splittable payment out of the Wife s interest in the Super Fund. (19) Splitting Order 1 operates from Operative Time 1. Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 12

13 Substantive Superannuation Split in favour of wife (Splitting Order 2) (20) That in accordance with paragraph 90MT(1)(b) of the Family Law Act 1975: (a) the Wife is entitled to be paid the specified percentage being 50% out of the Husband s Super Fund interest; and (b) the Husband s entitlement to the amount in his member account (and the entitlement of any other person to payments out of the Husband s interest) in the Super Fund is correspondingly reduced. (21) That the Husband and Wife in their capacity as directors of the trustee corporation of the Super Fund shall do all such acts and things and have signed all such documents as may be necessary to: (a) calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Husband in clause 4 of this Order; and (b) pay the entitlement whenever the trustees make a splittable payment out of the Husband s interest in the Super Fund. Operative time of the Order (22) The operative times for Splitting Order 1 and Splitting Order 2 operate as follows: (a) Firstly, Operative Time 1 operates from the beginning of the day of the transfer of the transferable benefit; and (b) Secondly, Operative Time 2 operates immediately following the operation of Operative Time 1. Transfer of Investment Property to Trustee of Wife s New Super Fund (23) The service of this Order shall be deemed to have occurred on the date of the Order by reason of the parties in their capacity as directors of the trustee corporation and the Court notes that this will enliven the operating standards under Part 7A of the Superannuation Industry (Supervision) Regulations Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 13

14 (24) That after service by the trustee, on behalf of the Super Fund, of the payment split notice in accordance with regulation 7.03 of the Superannuation Industry (Supervision) Regulations 1994 in accordance with the operating standards under the Superannuation Industry (Supervision) Regulations 1994, the Wife shall do all such acts and things and sign all such documents as may be necessary, including but not limited to exercising her request in accordance with regulation 7A.06 of the Superannuation Industry (Supervision) Regulations 1994 ( the Wife s regulation 7A.06 request ) for the transfer of the transferable benefits (defined in regulation 1.03 of the Superannuation Industry (Supervision) Regulations 1994) from the Super Fund to the Wife s interest in a complying superannuation fund nominated by the Wife, being the Baines Superannuation Fund (ABN (omitted)) ( the Wife s New Super Fund ). (25) That the Husband and Wife as directors of the trustee corporation shall convene a meeting by exchange of minutes within fourteen (14) days after receipt of the Wife s regulation 7A.06 request and in that meeting do all such acts and things, and sign all such documents as may be necessary to authorise the transfer of the transferable benefit in accordance with regulation 7A.12 of the Superannuation Industry (Supervision) Regulations 1994 to the trustee of the Wife s New Super Fund by way of the following: (a) The transfer of all right title and interest in the shares of (omitted) Pty Ltd from the trustee of the Super Fund to the trustee of the Wife s New Super Fund; and (b) The transfer of sufficient cash from the trustee of the Super Fund to the trustee of the Wife s New Super Fund to meet the balance of the trustee s liability in accordance with Splitting Order No 2 and the directors shall do all such things as may be necessary to sell or otherwise liquidate other investment property of the Super Fund to obtain the necessary cash referred to hereon And it is noted that the trustee of the Super Fund will be eligible for Capital Gains Tax Rollover relief in accordance with s of the Income Tax Assessment Act 1997 for any in specie transfers. Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 14

15 (26) That immediately following the transfer of the transferable benefits from the Husband s interest in the Super Fund to an interest in the name of the Wife in the Wife s New Super fund, the Wife shall do all such things and sign all documents necessary to resign: (a) as a director of the trustee corporation; and (b) as a member of the Super Fund; in accordance with the Rules of the Super Fund. (27) That contemporaneously with the wife s compliance with the provisions of Order (26) of this Order, the Husband will indemnify and keep the wife effectively indemnified against all liability of and in relation to the Super Fund including any debt personally guaranteed by the wife, and including any unpaid income tax assessed or hereinafter assessed against the Wife in respect of income derived or deemed to have been derived by the Super Fund inclusive of interest, penalties, costs and fines and from all proceedings, costs, claims or demands in respect thereof. (28) That in the event of any dispute arising between the parties in the exercise of their powers as trustees of the Super Fund, the parties shall appoint an arbitrator nominated by the President of the Institute of Chartered Accountants. (29) Pending the transfer of the transferable benefits from the Husband to the Wife and from the Wife to the Husband: (a) Each party is restrained from dealing with, charging, encumbering or disposing of any investment property of the Super Fund other than in accordance with the terms of this Order; and (b) Each party shall immediately revoke any binding death benefit nomination already made and each party be, and is hereby, restrained from: (i) making any binding death benefit nomination in favour of a child described in regulation 13 of the Family Law (Superannuation) Regulations 2001; Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 15

16 (ii) making any other nomination where the effect of such nomination would be to render any splittable payment not splittable; and (iii) doing any such act or thing which would defeat, extinguish or reduce the entitlement of either party under this order. AND THE COURT NOTES A. The value of the transferable benefits to be transferred: a) from the Wife s interest in the Super Fund to the Husband s interest in the Super Fund; and b) from the Husband s interest in the Super Fund to the Wife s interest in the Wife s New Super Fund; are calculated in accordance with regulation 7A.12 and regulation 7A.11 respectively of the Superannuation Industry (Supervision) Regulations 1994; B. In accordance with regulation 14F of the Family Law (Superannuation) Regulations 2001, any payments from: a) The Wife s interest in the Super Fund made after the trustees have transferred the transferable benefits from the Wife to the Husband s interest in the Super Fund; and b) The Husband s interest in the Super Fund made after the trustees have transferred the transferable benefits to the Wife s New Super Fund; are not splittable payments. IT IS NOTED that publication of this judgment under the pseudonym Baines & Baines is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth). Baines & Baines [2016] FCCA 1017 Cover sheet and Orders: Page 16

17 FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY SYC 4275 of 2011 MR BAINES Applicant And MS BAINES Respondent Application REASONS FOR JUDGMENT 1. This is an application for settlement of the parties property. The Husband is the Applicant. His Application was filed on 28 th November The Wife filed her Response and supporting documents on 15 th March The hearing took place over a period of four days, from 4 th March to 7 th Background March The Husband was born on (omitted) He is now 65 years of age. 5. The Wife was born on (omitted) She is now 56 years of age. 6. The parties commenced living together in (omitted) 1984, according to the Wife. They were married on (omitted) They separated on 6 th March 2010 and were divorced by Order of this Court on 25 th August Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 1

18 7. There are three children of the marriage, all adults. 8. X was born on (omitted) Y was born on (omitted) Z was born on (omitted) The parties lawyers have each prepared a chronology, and recourse has been had to each document for relevant details. 10. The Husband studied (qualifications omitted) between 1974 and 1979 and commenced in (business omitted). He purchased a number of properties from 1975 onwards. 11. On (omitted) 1975, the husband purchased a property at Property L for $45, On (omitted) 1977 the husband purchased a property at Property W for $43, On (omitted) 1979 the Husband purchased a (business omitted) and premises at Property K1, for $60, On (omitted) 1981 the Husband registered a company called Mr Baines Pty Ltd which became the trustee of the Baines Superannuation Fund. 15. On (omitted) 1981 the Husband purchased a (business omitted) at Property K2 for $138, and relocated his (business omitted) to that property. 16. On (omitted) 1983 the parties purchased a property at Property A for $257, The property was registered in the Husband s name. 17. On (omitted) 1985 the Husband sold the property at Property K1 for $86, In (omitted) 1985 the Husband sold the property at Property W, for $86, On (omitted) 1985 the Husband sold the property at Property L for $60, In 1986, the parties demolished the old house at Property A and commenced building a new house on the property. Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 2

19 21. The Wife ceased working full time before the birth of the parties son X on (omitted) 1986 and returned to work on a part time basis. 22. The parties second child Y was born on (omitted) The Wife returned to work on a part time basis after the child s birth. 23. On (omitted) 1991 the company (omitted) Pty Ltd was registered. The company purchased a property at Property C for $660, The parties third child Z was born on (omitted) The Wife ceased work altogether. 25. In 1997 the parties purchased Property T for $303, In 1998 the parties purchased a property at Property E for $166, In July 1998 the parties purchased a property at Property B, for $2, On 14 th August the parties purchased an apartment at Property O for $228, The Wife s mother died in On (omitted) 2003 probate of the mother s will was granted. The Wife received an inheritance of $390, She purchased her siblings shares in a property at Property P. 30. In 2003 the Wife purchased a property at Property H for $800, She subsequently sold the property in July 2005 for $950, The Wife resumed part time work in In 2007 the Husband assisted the parties daughter Y (Y) to purchase a home unit in (omitted) and the parties son X to purchase a home unit in Canberra. 33. In 2008 the Wife returned to work full time, working five days per week. 34. On (omitted) 2008 the wife purchased a property at Property R for $510, The parties separated on 6 March Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 3

20 36. After the parties separated, the Husband remained living in the former matrimonial home and the Wife moved into rental premises in (omitted). The Husband paid spousal maintenance of about $1, per week. 37. In October 2010 the Wife purchased a property at Property M. The Husband paid the mortgage instalments and also paid the Wife an amount of $ per week. 38. In October 2011 the Wife s employment was reduced to between 2 and 5 days per week. 39. In December 2012 the Wife s employment contract ceased and she commenced to work on a casual basis. 40. On 28 th February 2013 the parties entered into Interim Consent Orders providing that: a) within 21 days the husband was to pay to the Wife the sum of $200,000.00; b) within 21 days the parties would do all things necessary to transfer the parties Mercedes motor vehicle to the Wife free of all encumbrance; and c) the Husband would continue to meet all mortgage repayments over the property at Property M. 41. The parties also agreed that the classification of the funds paid to the Wife as a partial property settlement, payment for the Wife s costs or spousal maintenance would be an issue to be determined at the final hearing. 42. In April 2013 the Husband purchased a motor vehicle for the parties daughter Y. 43. On 21 st November 2013 the parties entered into further Interim Consent Orders. Those Orders provided that (in summary): a) Within 21 days, the Husband would: i) Pay to the Wife the sum of $95,000.00; Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 4

21 ii) Discharge the mortgage to (omitted) Bank registered on the title of the property Property T, New South Wales; iii) Deliver to the Wife a signed transfer of all of his right, title and interest in the Property T property by way of partial property settlement; b) The Husband would terminate any existing lease, holding over arrangement or any management agreement over the property. c) The Consent Orders included a notation that: Orders Sought The parties agree that the classification of the funds to be paid to the wife pursuant to Order 1(a) as a partial property settlement, payment for the wife s costs or spousal maintenance for the wife is an issue to be determination (sic) at the final hearing in this manner. 44. The Husband seeks orders to this effect: PART A ORDERS FOR NON-SUPERANNUATION ASSETS AND LIABILITIES Real Property 1. That in these Orders: 1.1 The Property A property means the property situate at and known as Property A in the State of New South Wales being the whole of the land comprised in folio identifier (omitted); 1.2 The Property K property means the property situate at and known as Property K in the State of New South Wales being the whole of the land comprised in folio identifier (omitted); 1.3 The Property B property means the property situate and known as Property B, in the State of New South Wales being the whole of the land comprised in folio identifier (omitted); Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 5

22 1.4 The Property O property means the property situate and known as Property O, in the State of New South Wales being the whole of the land comprised in folio identifier (omitted); 1.5 The Property P property means the property situate and known as Property P in the State of New South Wales being the whole of the land comprised in folio identifier (omitted); 1.6 The Property M property means the property situate and known as Property M in the State of New South Wales being the whole of the land comprised in folio identifier (omitted); 1.7 The Property R property means the property situate and known as Property R in the State of New South Wales being the whole of the land comprised in folio identifier (omitted); 1.8 The Property T property means the property situate and known as Property T, in the State of New South Wales being the whole of the land comprised in folio identifier (omitted); The Property E property means the property situate and known as Property E, in the State of Queensland being the whole of the land comprised in Lot (omitted) of Building Unit Plan (omitted). 2. That within 28 days of the date of these Orders the husband will do all acts and things and sign all documents as shall be necessary to: 2.1 Pay to the wife or as she may direct in writing, the sum of $150,000; 2.2 Discharge the mortgage currently secured on title of the Property M property in favour of the (omitted) Bank being dealing number (omitted); 2.3 Transfer to the wife all of his right title and interest in the Property M property; 1 An order transferring to the wife the husband s interest in the Property T property was made by Consent on 21 November 2013 Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 6

23 2.4 Transfer to the wife all of his right title and interest in the Property P property and the wife will indemnify the husband in relation to all liabilities the parties may have in relation to that property; 2.5 Transfer to the wife all of his interest in the Property R property and the wife will indemnify the husband in relation to all liabilities the parties may have in relation to that property; and 2.6 Transfer to the wife all of his right title and interest in the Property T property 2 and the wife will indemnify the husband in relation to all liabilities the parties may have in relation to that property. 3. That simultaneously upon the husband s compliance with Order 2, the wife will do all acts and things and sign all documents as shall be necessary to transfer to the husband all of her right, title and interest in: 3.1 The Property A property; 3.2 The Property K property; 3.3 The Property B property; 3.4 The Property O property; 3.5 The Property E property; and the husband will indemnify the wife in relation to all liabilities the parties may have in relation to those properties. Commercial Entities 4. For the purpose of these Orders: 4.1 Husband means Mr Baines (also known as Mr Baines) born (omitted) 1950; 4.2 Wife means Ms Baines born (omitted) 1959; 4.3 (omitted) Pty Ltd means (omitted) Pty Ltd, ABN (omitted), being a company registered in the State of New South Wales and having its registered office at Property K, New South Wales and in respect of which 2 The parties entered into Consent Orders on 21 November 2013 whereby the husband was to transfer to the wife his interest in the Property T property as an order by way of partial property settlement Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 7

24 the husband and wife are the directors, the husband is the secretary and the shareholders are Baines Superannuation Fund as to 311,182 Class A shares, the husband as to 132,982 ordinary fully paid beneficially held shares, the wife as to 38,305 ordinary fully paid beneficially held shares and the Baines Superannuation Fund as to 500,368 fully paid beneficially held shares; 4.4 (business omitted) Pty Ltd means (business omitted) Pty Ltd, ABN (omitted) being a company registered in the state of New South Wales and having its registered office at Property K, New South Wales and in respect of which the husband and wife are the directors, the husband is the secretary and the sole shareholder. 5. (business omitted) Pty Ltd consents to being joined to these proceedings for the purpose of consenting to and being bound by these Orders. 6. (business omitted) Pty Ltd acknowledges it has by these orders been given sufficient notice and has been afforded procedural fairness in the making of these Orders. 7. (omitted) Pty Ltd consents to being joined to these proceedings for the purpose of consenting to and being bound by these Orders. 8. (omitted) Pty Ltd acknowledges it has by these Orders been given sufficient notice and has been afforded procedural fairness in the making of these Orders. 9. The Wife will, within 7 days and before compliance with Order 10 below and Part B of these orders, return to the Husband s accountant Mr L for lodgement, the original signed Taxation Returns and Financial Statements for (business omitted) Pty Ltd, (business omitted) Pty Ltd superannuation Fund and (omitted) Pty Ltd including the Loan Agreement between (omitted) Pty Ltd and Ms Baines dated 30 June 2013 (sent to the wife care of her lawyer by Mr L on 14 September 2013) and will do all acts and things and sign all documents as shall be necessary to facilitate lodgement 3 of such documents with the Australian Taxation Office. 3 sic Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 8

25 10. Following compliance with Order 9 above the Husband will take all steps and sign all documents necessary to transfer his ordinary shares in (omitted) Pty Ltd to the wife or her nominee and resign all directorships and/or positions and/or offices in (omitted) Pty Ltd. 11. Subject to the Husband complying with Order 10 the Wife shall indemnify and keep indemnified the husband against any liability of whatsoever nature which the husband has at any time arising in any way in respect of (omitted) Pty Ltd whether: 11.1 by reason of the Husband having been employed as a director, officer and/or shareholder of (omitted) Pty Ltd; 11.2 by reason of the husband having been involved in any business operated by (omitted) Pty Ltd; 11.3 pursuant to any guarantee given by the husband; 11.4 by the receipt by the husband of any money from (omitted) Pty Ltd; 11.5 as a result of any liability of (omitted) Pty Ltd; or 11.6 otherwise. Chattels and Residue 12. Each party will otherwise retain all liabilities of whatsoever kind or nature which stand in their sole name and will indemnify the other party in relation thereto. 13. Save as otherwise provided in these Orders the Wife will be declared to have the sole right, title and interest at law and in equity of: 13.1 Any other chattels, goods, furnishings and other property which are, as at the date of these Orders, in her possession; and 13.2 Any monies, shares, debentures and superannuation entitlements, which stand in her sole name as at the date of these Orders. 14. Save as otherwise provided in these Orders the Husband will be declared to have the sole right, title and interest at law and in equity of: Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 9

26 14.1 Any chattels, goods, furnishings and other property which are, as at the date of these Orders, in his possession; and 14.2 Any monies, shares, debentures and superannuation entitlements, which stand in his sole name as at the date of these Orders. Enforcement 15. In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders then the Registrar of the Court is appointed pursuant to Section 106A of the Family Law Act, to execute such deed or instrument in the name of such party and to do all things necessary to give validity and operation to the deed or instrument. 16. Each party is granted liberty to apply on seven (7) days notice regarding the implementation of these Orders. PART B SUPERANNUATION SPLITTING ORDERS IN MAKING THESE ORDERS, THE COURT NOTES: A. The Baines Pty Ltd Superannuation fund ABN (omitted) ( the Super Fund ) is a self managed superannuation fund listed by the Australian Taxation Office on the Super Fund Lookup website ((omitted)) as a complying superannuation fund. B. The Super Fund was established under a Deed of Trust dated 1 August The rules governing the operation of the Super Fund are contained in the Deed of Trust ( the Rules ). C. The Husband and the Wife are the only members of the Super Fund. D. The trustee of the Super Fund is a corporation, (business omitted) Pty Ltd (CAN (omitted))( the trustee corporation the trustee ) and the Husband and Wife are the Directors of that corporation. E. The Husband has the following member accounts in the Super Fund and in accordance with s.90mt(2) of the Family Law Act 1975, as at 30 June 2013 the respective balance was: a. Accumulation $2,087,950 Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 10

27 b. Accumulation (Tax free) $1,360,495 Total $3,448,444 F. The Wife has the following member account in the Super Fund and in accordance with s.90mt(2) of the Family Law Act 1975, as at 30 June 2013 the respective balance was: a. Accumulation $874,320 b. Accumulation (Tax free) $1,234,588 Total $2,108,908 G. That the requirements of procedural fairness in accordance with s.90mzd of the Family Law Act 1975 have been observed on the basis that the parties are the directors of the trustee corporation of the Super Fund. H. Baines Superannuation Fund means Baines Superannuation Fund, ABN , created by Deed dated 18 July 2012 and in respect of which (omitted) Pty Ltd is the trustee. i. (omitted) Pty Ltd means (omitted) Pty Ltd, ABN (omitted) 919, being a company registered in the state of New South Wales and having its registered office at Property K, New South Wales and in respect of which the husband and wife are the directors, the husband is the secretary and the shareholders are Mr Baines Superannuation fund as to 311,182 Class A shares, the husband as to 132,982 ordinary fully paid beneficially held shares, the wife as to 38,305 ordinary fully paid beneficially held shares and the Baines Superannuation Fund as to 500, 368 Ordinary fully paid beneficially held shares. IT IS ORDERED: Wife to transfer her entire interest in the Super Fund to the Husband for an Instant (Splitting Order 1) 1. That in accordance with paragraph 90MT(1)(b) of the Family Law Act 1975: a) the Husband is entitled to be paid the specified percentage, being 100%, out of the Wife s Super Fund interest; and b) the Wife s entitlement to the amount in her member account (and the entitlement of any other person to Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 11

28 payment out of the Wife s interest) in the Super Fund, is correspondingly reduced. 2. That the Husband and Wife in their capacity as directors of the trustee corporation of the Super Fund, shall do all such acts and things and have signed all such documents as may be necessary to: a) calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Husband in clause 1 of this Order; and b) pay the entitlement whenever the trustees make a splittable payment out of the wife s interest in the Super Fund. 3. Splitting Order 1 operates from Operative Time 1. Substantive Superannuation Split in favour of Wife (Splitting Order 2) 4. That in accordance with paragraph 90MT(1)(b) of the Family Law Act 1975: a) the Wife is entitled to be paid the specified percentage, being 50%, out of the Husband s Super Fund interest; and b) the Husband s entitlement to the amount in his member account (and the entitlement of any other person to payments out of the Husband s interest) in the Super Fund, is correspondingly reduced. 5. That the Husband and Wife in their capacity as directors of the trustee corporation of the Super Fund, shall do all such acts and things and have signed all such documents as may be necessary to: a) calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Wife in clause 4 of this Order; and b) pay the entitlement whenever the trustees make a splittable payment out of the Husband s interest in the Super Fund. Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 12

29 6. Splitting Order 2 operates from Operative time 2. Operative time of the Order 7. The operative times for Splitting Order 1 and Splitting Order 2 operate as follows: a) Firstly, Operative Time 1 operates from the beginning of the day of the date of the transfer of the transferable benefit; and b) Secondly, Operative Time 2 operates immediately following the operation of Operative Time 1. Transfer of Investment Property to Trustee of Wife s New Super Fund 8. The service of this Order shall be deemed to have occurred on the date of the Order by reason of the parties in their capacity as directors of the trustee corporation and the Court notes that this will enliven the operating standards under Part 7A of the Superannuation Industry (Supervision) Regulations That after service by the trustee, on behalf of the Super Fund, of the payment split notice pursuant to r.7a.03 of the Superannuation Industry (Supervision) Regulations 1994, the Wife shall do all such acts and things and sign all such documents as may be necessary, including but not limited to exercising her request pursuant to r.7a.06 of the Superannuation Industry (Supervision) Regulations 1994 ( the Wife s r.7a.06 request ) for the transfer of the transferable benefits (defined in r.103 of the Superannuation Industry (Supervision) Regulations 1994) from the Super Fund to the wife s interest in a complying superannuation fund nominated by the Wife, being the Baines Superannuation Fund (ABN (omitted))( the Wife s New Super Fund ). 10. Provided that Orders 9 and 10 of these Orders has 4 been complied with, the Husband and Wife as directors of the trustee corporation shall convene a meeting by exchange of minutes within 14 days after receipt of the Wife s r.7a.06 request and in that meeting do all such acts and things and sign all such documents as may be necessary to authorise the transfer of the transferable benefit pursuant to r.7a.12 of 4 sic Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 13

30 the Superannuation Industry (Supervision) Regulations 1994 to the trustee of the Wife s New Super Fund by way of the following: a) The in specie transfer of all right title and interest in the shares in (omitted) Pty Ltd from the trustee of the Super Fund to the trustee of the Wife s New Super Fund; and b) The in specie transfer of sufficient other investment property of the Super Fund from the trustee of the Super Fund to the trustee of the Wife s New Super Fund to meet the balance of the trustee s liability in accordance with Splitting Order 2, and it is noted that the trustee of the Super Fund will be eligible for Capital Gains Tax Rollover relief pursuant to s of the Income Tax Assessment Act 1997 for any in specie transfers. 11. That immediately following the transfer of the transferable benefits from the Husband s interest in the Super Fund to an interest in the name of the Wife in the Wife s New Super Fund, the Wife shall do all such things and sign all documents necessary to resign: a) as a director of the trustee corporation; and b) as a member of the Super Fund; in accordance with the Rules of the Super Fund. 12. That contemporaneously with the Wife s compliance with the provisions of Order 11 of this Order, the Husband will indemnify and keep the Wife effectively indemnified against all liability of and in relation to the trustee corporation whether: a) by reason of the wife having been employed as a director, officer and/or shareholder of (business omitted) Pty Ltd; b) by reason of the wife having been involved in any business operated by (business omitted) Pty Ltd; c) pursuant to any guarantee given by the wife; d) by the receipt by the wife of any money from (business omitted) Pty Ltd; Baines & Baines [2016] FCCA 1017 Reasons for Judgment: Page 14