Henschel & Sartre (No 9) [2025] FedCFamC1F 626 (4 September 2025)

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

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Henschel & Sartre has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. After five years of conflict and hostility occasioned in part by way of parenting and property adjustment proceedings, reasons for judgment were delivered and orders were made pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act") adjusting property between Ms Henschel, ("the wife"), and Mr Sartre, ("the husband") on 31 March 2025. The s 79 orders broadly adjusted the property of the parties as to 54.5 per cent to the husband and 45.5 per cent to the wife. An Application - Enforcement was filed by the husband soon after the primary reasons for judgment were delivered and orders made, on 16 May 2025, such enforcement being compromised by way of consent orders made by me on 27 May 2025.
2. These reasons determine the wife's Application - Enforcement filed on 25 July 2025. By way of that application, the wife identifies enforcement of Order 1(a), made on 31 March 2025, recording as follows:

1. The husband and wife in their capacities as directors of [B6] Pty Ltd ACN [...] ("[B6 Pty Ltd]") as trustee of the Mr Sartre and Ms Henschel Family Trust ("the Family Trust") shall do all acts and things and sign all documents required:

(a) Within 14 days of the date of these orders to transfer to the wife the plant, equipment, livestock, and silage recorded in the accounts of the Family Trust at 30 June 2024

3. By way of particularity, the wife by way of enforcement seeks the following orders:
   1. That a Warrant be issued pursuant to Rule 11.58(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 authorising an enforcement officer to seize, detain and deliver up to the applicant wife the following personal property:-

1.1 The [Construction Vehicle 3];

1.2 The classic box trailer;

1.3 The [Construction Vehicle 1];

1.4 The whitegoods and materials purchased for installation in the caretaker's cottage;

1.5 Sundry plant and equipment, including tools;

1.6 The [Construction Vehicle 2];

1.7 The [Motor Vehicle 3] with agricultural spray unit;

1.8 The steel beams and uprights for the construction works;

and for these purposes to enter into such lands as may be necessary to locate the said items and to execute the Warrant.

1. That upon such Warrant being issued, it "lie on the Bench" until 4:00pm on the 10th business day after the Warrant is issued.

2. That the respondent pay the applicant's costs of the execution of the Warrant including such costs as are incurred on an indemnity basis for the removal and relocation of such items to the farming property known as "[N Property] ", [N Street], [Town O].

3. That the respondent pay the applicant's costs.

(As per the original)

1. The husband opposes the enforcement as sought by the wife and seeks costs.
2. The reasons delivered on 31 March 2025 give context to the current dispute between the parties. The reasons relevantly record:
   1. On 30 June 2005 the husband established the [Mr Sartre] Family Trust by way of deed. A deed of variation was made on 30 March 2014, renaming it as the [Mr Sartre and Ms Henschel] Family Trust ("the Family Trust"). The husband holds the power to appoint and remove the trustee at his absolute discretion. The corporate trustee is [B6] Pty Ltd ("[B6 Pty Ltd]"). The husband was the sole director of the trustee until 30 March 2014 when the wife was also appointed as a director. Both the husband and the wife are now directors and equal shareholders in the trustee. The trustee has an unfettered discretion to distribute the income and property of the Family Trust. The parties agree that the Family Trust is their property amenable to adjustment pursuant to s 79 of the Act.

...

1. Relevantly to the rural interests of the Family Trust, in 2005 the parties acquired a farming property at [2 AG Street], [Town AK] ("the [AK] property") for $589,500. The Family Trust then acquired a property at [Lots 1 and 2 AL Street], [Town O] ("the [AA] property") for $770,000. On [...] 2011 the Self-Managed Superannuation Fund [1] ("the [Superannuation Fund 1] SMSF") acquired the [AA] property from the Family Trust. The husband and the wife are the only members of the [Superannuation Fund 1] SMSF. [B6 Pty Ltd] is the trustee of the [Superannuation Fund 1] SMSF. The Family Trust then acquired a property at [N Street], [Town O] ("the [N] property") for $3 million. The [AA] property is vacant, being rented by the Family Trust from the [Superannuation Fund 1] SMSF for grazing. The balance of the farming activities of the Family Trust are conducted from the [N] property.

...

1. On 5 July 2023 orders were made for the sale of cattle, silage, and machinery to facilitate the payment to the wife of the partial property settlement order made on 23 February 2023.

...

1. Between January 2024 and November 2024 multiple disputes again arose between the parties as to the husband's access to the [N] property.

...

1. On the last day of the trial the wife amended her final relief sought by way of a minute of order containing (Exhibit 43). She seeks:

An Order altering the property interests of the parties in the following terms:-

1.1 the Husband and Wife as Directors of [B6 Pty Ltd] shall do all acts and things and sign all documents required within 14 days to transfer to the Wife the plant, equipment, livestock and sileage recording in the accounts of the Family Trust;

1. On the last afternoon of the trial the husband also amended his final relief sought by way of a minute of Order (Exhibit 48). He seeks:

1.1 the Husband and Wife as Directors of [B6 Pty Ltd] shall do all acts and things and sign all documents required within 14 days to transfer to the Wife the plant, equipment, livestock and sileage recording in the accounts of the Family Trust;

1. As can be seen, some of the orders or parts of them were the subject of agreement. I am told it is agreed that:

(a) The [N] property, valued at $8.5 million and the plant, equipment, livestock and sileage, each owned by the Family Trust, will be transferred from the Family Trust to the wife in specie.

(b) The husband will retain the balance of the Family Trust, including the shares it holds in [B2 Pty Ltd] and the benefit of the wife's credit loan account.

(c) [B6 Pty Ltd] is to be replaced as the corporate trustee of the Family Trust.

1. Superficially, other subject matters appear to be the subject of broad agreement. On closer examination the respective minutes of order contain not insignificant differences as to methodology, chronology, and control. Each minute of order contained lengthy schedules defining items of property. Some definitions in the schedules, of implicit importance to the parties, were the subject of disagreement.

...

1. The parties each seek nuanced orders in the adjustment of their property. After four and a half years of litigation, incurring combined legal costs of more than $3.45 million and the current five-day trial event, with the benefit of experienced senior and King's counsel and accredited solicitors, the husband and the wife were requested to provide a joint proposed minute of the orders sought by each in Exhibits 43 and 48 that were agreed, with a common set of definitions. That request could not, being emblematic of the litigation, be fulfilled.

2. Section 79 proceedings require the form of orders adjusting property to be just and equitable. If the parties fail to promote their obligations as litigants pursuant to s 96 of the Act, and for the period up to amendment to the legislation, s 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the mandate to achieve justice and equity must be achieved doing the best as can be done on the available evidence and within the parameters the parties present. When crafting orders adjusting the property of these parties, it is necessary, in so far as is possible, to obviate any requirement for them to achieve consensus or constructively implement the progression of orders, as it is not expected that either will adopt a commercial approach or be sensitive of the other.

3. The husband and the wife agree that:

(a) The wife will retain the [N] property in specie at a value of $8.5 million and the plant, equipment, livestock and sileage recorded in the accounts of the Family Trust, the husband being enabled to retain and retrieve at least the property of the [B] Group from the [N] property;

(b) [B6 Pty Ltd] will be removed as the trustee of the Family Trust and a new trustee appointed, with the husband to retain the Family Trust, including receiving the wife's credit loan account, but excluding [N Property] and the trusts plant, equipment, livestock and silage;

...

1. The parties agreed to an order for the wife to have exclusive occupancy of the [N] property and for she to be solely entitled to conduct the day-to-day farming activities in the ordinary business of the Family Trust including in respect of the management of livestock at the [N] property. Such an order will be made. The husband sought that, pending the sale of the [Suburb W] property, he meets, as and when they fall due, all mortgage instalments, statutory charges and outgoings and indemnify the wife in relation to the same. Such order will be made.
2. Orders will be made broadly in the terms as agreed between the parties for the transfer of the [N] property from the Family Trust to the wife, for the wife to assign to the husband her credit loan account with the Family Trust, for the husband to appoint a new trustee being a corporate trustee of which he is the director and shareholder, and for the wife to indemnify him in relation to any liabilities in relation to the [N] property.

1. As can be seen, Order 1 (a) made on 31 March 2025 as sought to be enforced was in terms constructed and agreed to by the parties at the conclusion of the trial.

1. Section 105(1) of the Act provides the source of power to enforce orders. It provides:
   1. Enforcement generally

(1) Subject to this Part, to the regulations, and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.

1. Chapter 11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") has application to proceedings for enforcement.
2. In McMillan & McMillan [2016] FamCA 387, Tree J gave an overview of relevant authorities at [37] - [60] summarised by Carew J as to conclusions by way of relevant principle in Suris & Suris (No 2) [2023] FedCFamC1F 89 at [20] - [22]. I adopt that summary as being as follows:

(a) The nature of the power to enforce is discretionary as evidenced by the use of the term "may" in s 105 of the Act;

(b) Only the facts or circumstances arising since the date of an order sought to be enforced will inform any discretion sought to be exercised pursuant to s 105 of the Act;

(c) The Court may refuse to enforce an order if it would be "inequitable" to do so;

(d) When considering whether or not it would be inequitable to enforce the order, the Court is primarily concerned with "general notions of fairness";

(e) The party submitting that it would be inequitable to enforce the order bears the onus of so establishing;

(f) Delay in bringing an application for enforcement is a relevant factor.

1. The Court is invested in ensuring the enforcement of its orders, albeit that the order sought to be enforced is a construction of the parties. In enforcing orders, the Court is obliged to give a broad interpretation to the order sought to be enforced.

1. The wife's evidence is that the financial statements for the Mr Sartre and Ms Henschel Family Trust ("the Trust") as at 30 June 2024 did not explicitly identify the plant and equipment of the Trust. Those financial statements record a summary as to the written down depreciated value of that plant and equipment. No depreciation schedule relevant to the 2024 financial statements was adduced into evidence.
2. Correspondence passed between the respective solicitors for the parties, and then between the solicitor for the wife and the husband, as to whether the plant and equipment identified by the wife in her Application - Enforcement was the property of the Trust at the relevant date. So as to determine this factual dispute, I shall deal with the items sought to be recovered sequentially.
3. The wife bears the onus to establish, to the requisite degree, that each of the items sought by way of enforcement in specie, were the property of the Trust at the relevant date.

1. The wife adduced into evidence a number of depreciation schedules. The first was a depreciation schedule as at 2009. That was not a depreciation schedule of the Trust as it was then constituted. It was a depreciation schedule forming part of the wife's personal tax return. That depreciation schedule included a reference to a Construction Vehicle 3. She adduced into evidence the depreciation schedules of the Trust prepared by its then trustee, B6 Pty Ltd as at 30 June 2011 and 30 June 2012. The husband was the sole shareholder and director of the corporate trustee for the purposes of each of those tax years, albeit the husband's evidence is that he left it to the wife to cause the financial statements to be prepared. It is uncontroversial that he was the person ultimately responsible for the financial statements published which included the depreciation schedule and that he implicitly acknowledged that those schedules were correct.
2. The wife adduced into evidence a New South Wales Transport registration certificate for the vehicle due to expire on 24 November 2017.
3. It is uncontroversial between the parties that the Trust obtained the benefit of a primary producer concession arising from its ownership and use of the vehicle.
4. The husband's evidence is that the vehicle, together with agricultural equipment, was not owned by the Trust but implicitly was owned by another entity within the B group which historically paid for registration and other costs for the vehicle. I place little weight on his submission as to the vehicle itself not being recorded as a specific item in the 2024 financial statements of the Trust to be depreciated, concluding that the vehicle was not owned by the Trust at 30 June 2024.
5. I find that the wife has established, on balance, that the Construction Vehicle 3 is an asset or property of the Trust, to be transferred to her personally pursuant to Order 1(a) made on 31 March 2025. The husband caused the vehicle to be delivered to a roadway located close to the N property at Town O yesterday but has retained the key for the construction vehicle. The construction vehicle has not been registered for a number of years. The wife is in the position to take possession of the construction vehicle. An order will be made that the husband cause the key to the vehicle, or any keys he has to the construction vehicle, to be delivered to the officers of the solicitors for the wife, Karras Partners, on or before 4.00 pm tomorrow, 5 September 2025.

1. The wife gives summary evidence that the box trailer is "registered in my sole name". She adduced a certificate of registration for the trailer. She says the trailer was purchased in 2005 and used on the farm. It is recorded in her personal 2009 depreciation schedule.
2. The balance of her evidence to support the trailer being an asset of the Trust is that the trailer was insured "at the expense of the farm" in a certificate of insurance schedule. That schedule records as "the insured", being the owners of the property insured, as each of the husband and the wife and the Trust by way of its trustee. It does not record the box trailer as owned by the Trust. It is her evidence that she "paid the insurance premium" for that policy from "the farm account ultimately on behalf of the Trust". I am not satisfied that she has established that the box trailer is an asset of the Trust. Her relief as to the box trailer will be dismissed.

1. The wife has adduced into evidence, as previously identified, the depreciation schedules for the Trust for the years 30 June 2011 and 30 June 2012. Those depreciation schedules record, as an asset of the Trust, the construction vehicle. The husband contends that the construction vehicle was purchased by the B group overseas and was stored in a shipping container, implicitly at the N property. He contends that at no time was it owned by the Trust. I give little weight, for the reasons identified earlier, as to the failure of the 2024 financial statements to specifically record the construction vehicle. I am satisfied, having regard to the evidence adduced by the wife as to the construction vehicle that she has established to the requisite degree that the construction vehicle is an asset of the Trust that ought be transferred, and assigned, and delivered to her pursuant to Order 1(a) as made on 31 March 2025. An order will be made that the husband do all such things as are necessary to cause that item to be delivered to the wife at the front gate of the N property at Town O on Friday, 10 September 2025 at 4.00 pm.

The Whitegoods and Materials Purchased for the Installation in the Caretaker's Cottage

1. The wife gives evidence that in 2017 whitegoods were purchased to install in the caretaker's cottage at N Property, being a cooktop, dishwasher, rangehood oven, tumble dryer and integrated refrigerator from a retailer at Suburb BL. She adduced into evidence the customer order/invoice on the purchase of the items. The identified customer is the husband, his address being N Property, with the delivery address being the B Group premises at Suburb BK. She also adduced into evidence the husband's or B7 Pty Ltd's AMEX account with handwriting on it. Her summary evidence is that some items were stored at the Suburb J factory and "purchased through the accounts of the family trust".
2. The husband said some of the items, being the dishwasher and dryer, were stored in Sydney and others transported to the farm. The wife's evidence is that she last saw the items in 2017, some eight years ago. The husband says that some of the items have been installed in the V Street property in Suburb W.
3. I am not satisfied that the wife has established to the requisite degree that the white goods were acquired by the Trust and form assets of the Trust. In the event I am in error in that determination, I accept the husband's evidence that some of the items have been subsequently installed in the Suburb W property. I would not in the exercise of discretion enforce the delivery of those items to the wife in that circumstance, coupled with she having not seen the items for eight years. Her relief as to the recovery of those items will be refused.

1. The wife gives evidence that this machine was removed recently by the husband from the farm. She says it was purchased in May 2009 for $30,500 and used for farming activities. She identifies that it was insured by way of the insurance policy referred to earlier in these reasons. I give the fact of the inclusion of the item in that policy little weight for the reasons identified earlier. The husband says the machine was purchased by the B group in 2009. He says that it was used for the construction of a premises occupied by B Pty Ltd, either at Suburb BK or Suburb J. It is his evidence, not put into issue by the wife, confirmed by way of correspondence from his solicitors to the wife's solicitors, and supported by a certificate of insurance, that the machine was also insured by B Pty Ltd. It is his evidence that B Pty Ltd serviced and maintained the machine, including replacing its hydraulic rams. He says, absent contest from the wife, that the cost of these repairs was met by B Pty Ltd.
2. Significantly, notwithstanding the machine was acquired for a not insubstantial value in 2009 it does not form part of the depreciation schedules of the Trust for the 2011 and 2012 financial years. The machine was not valued in the substantive proceedings as an asset of B Pty Ltd. Notwithstanding, I infer, as a matter of logic, that if the machine was owned by the Trust, it would have been the subject of depreciation in the Trust's accounts in 2011 and 2012. I do not accept that the wife has established to the requisite degree that the Construction Vehicle 2 is an asset of the Trust. Her relief in relation to the machine will be refused.

1. The Motor Vehicle 4 was located at the N property until recent times. Its vehicle identification number is [...]. The wife adduced into evidence a registration certificate identifying the trustee of the Trust as its registered owner in 2014. The evidence of each party is that this vehicle also was the subject of a primary producer concession claimed by the Trust. The depreciation schedule of the Trust included the vehicle as an asset of the Trust's for 2011 and 2012. It is the wife's evidence that the registration and insurance fees for the vehicle were paid by the Trust.
2. It is the husband's evidence that the Motor Vehicle 3 was purchased in 2005 and that he has done work on the vehicle. He says that the Trust "never reimbursed me for this [vehicle]". That may well be so. Whether the Trust provided a credit in a loan account to him for the vehicle is unknown. That said, the wife has established on balance that the Trust is the owner of the vehicle. Orders will be made for the husband to deliver the Motor Vehicle 3, together with its keys, to the wife at the same time and location as the Construction Vehicle 1.

The Steel Beams and Uprights for the Construction Units

1. It is the wife's evidence that items of steel that have been photographed were removed by the husband from the N property in recent times. She broadly asserts absent particularity that the steel is "included" in the written down value of the assets of the Trust. She did not adduce objective evidence to establish that the steel was acquired by or fabricated by the Trust. The husband specifically identifies, in his evidence, the purchase and fabrication of the steel by the B Group. Irrespective of the parties proposed use of the steel, it is the husband's evidence that it is currently being used to construct a shed at a property in Suburb BM to be used by B Group. I am not satisfied that the wife has established that the Trust owns the steel. Her relief in relation to the steel will be refused.

1. The wife sought that an enforcement warrant issue and lay in chambers pending the husband causing any items to be recovered and enforced being received by her. I am not satisfied that such a warrant ought to be ordered at the present time. The husband has been present at Court today. He is aware as to the process and cost, should an enforcement warrant be required to be issued by way of further enforcement. In those circumstances, I propose to grant the wife a limited leave for a fixed short period to seek the issue of an enforcement warrant pursuant to the Rules should she be so advised.
2. For all of the aforementioned reasons, I make the following orders.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex-tempore Reasons for Judgment of the Honourable Justice Campton.