Ademis & Beauman (No 2)

Case [2021] FCCA 245

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ademis & Beauman (No 2) [2021] FCCA 245

File number(s): MLC 5968 of 2019
Judgment of: JUDGE BLAKE
Date of judgment: 15 February 2021
Catchwords: FAMILY LAW – property – composition of asset pool – adjustment to the wife for contributions – property pool to be divided 60% to the wife and 40% to the husband  
Legislation: Family Law Act 1975 (Cth) ss 75, 79
Cases cited:

Bevan v Bevan [2013] FamCAFC 116

Dickons v Dickons [2012] FamCAFC 154

Eufrosin v Eufrosin [2014] FamCAFC 191

Lovine v Connor [2012] FamCAFC 168

Stanford v Stanford [2012] HCA 52
Number of paragraphs: 120
Date of hearing: 27-30 October 2020
Place: Melbourne
Counsel for the First Applicant: Mr Hale
Solicitor for the First Applicant: Peter Lynch
Counsel for the First Respondent: Mr Carne
Solicitor for the First Respondent: Kenna Teasdale Lawyers

ORDERS

MLC 5968 of 2019
BETWEEN:

MR ADEMIS

Applicant
AND:

MS BEAUMAN

Respondent

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

15 FEBRUARY 2021

THE COURT ORDERS THAT:

1.Within sixty days of the date of these Orders ('due date'), the Respondent pay the Applicant the sum of $63,438 ('payment').

2.Contemporaneously with the payment:

(a)the Applicant do all acts and things and sign all documents necessary to discharge the mortgages and loans (‘F Street, Suburb G Mortgages’) secured against the title to the property at F Street, Suburb G in the State of Victoria (‘F Street, Suburb G Property’) and pay out or refinance the debts secured by the said F Street, Suburb G Mortgages into his sole name; and

(b)the Respondent do all acts and things and sign all documents necessary transfer to the Applicant, at the Applicant's expense, all of her right, title and interest in the F Street, Suburb G Property.

3.If the Applicant fails to comply with Order 2(a) herein, the F Street, Suburb G Property be sold forthwith, with the Respondent to have the conduct of the sale, and the sale proceeds be applied as follows:

(a)first, to pay the costs, commissions and expenses of the sale including conveyancing fees;

(b)second, to discharge the F Street, Suburb G Mortgages;

(c)third, to pay all outstanding rates, taxes, outgoings and other encumbrances owing in relation to the property;

(d)fourth, to pay any taxation payable as a consequence of the sale; and

(e)fifth, the balance then remaining be paid to the Applicant.

4.Pending compliance with Orders 2 and 3 herein:

(a)the Applicant pay and be responsible for all instalments due under the F Street, Suburb G Mortgages and all rates, taxes and insurances in relation to the F Street, Suburb G Property as and when they fall due;

(b)the Applicant shall have the sole right to occupy the F Street, Suburb G Property;

(c)neither party shall encumber or further encumber the F Street, Suburb G Property without the prior written consent of the other party; and

(d)the parties are to hold their interests in the F Street, Suburb…

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Ademis & Beauman (No 2) [2021] FCCA 245
Case
[2021] FCCA 245
Decision Date

CaseChat Overview and Summary

In *Ademis & Beauman (No 2)*, Blake J of the Federal Circuit Court of Australia made orders adjusting the property interests of the parties, Mr Ademis (the Applicant) and Ms Beauman (the Respondent), following their separation. The dispute concerned the division of various assets, including real estate, motor vehicles, company interests, and superannuation entitlements.

The court was required to determine how the parties' respective interests in their property should be adjusted to achieve a just and equitable outcome. This involved considering the contributions of each party to the relationship and to the acquisition, conservation, and improvement of their respective assets, as well as future needs and other relevant circumstances. The court also had to address the specific arrangements for the transfer of property, the discharge of mortgages, and the allocation of liabilities.

Blake J reasoned that a 60/40 division of property interests in favour of the Respondent (the Wife) was just and equitable. The orders detailed the exclusive entitlement of each party to specific assets, including the F Street, Suburb G Property to the Applicant and the H Street, Suburb J Property to the Respondent, subject to certain conditions. The orders also stipulated the payment of a sum of $63,438 by the Respondent to the Applicant, and outlined detailed provisions for the discharge of mortgages, transfer of property titles, and the conduct of any sale if compliance with the primary orders failed. Furthermore, the court addressed the allocation of responsibility for various liabilities and provided for the handling of potential taxation consequences arising from property sales. The court also ordered the Applicant to pay the Respondent's reserved costs fixed at $5,500.

Orders

Orders of the court

MLC 5968 of 2019

BETWEEN:

MR ADEMIS

Applicant

AND:

MS BEAUMAN

Respondent

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

15 FEBRUARY 2021

THE COURT ORDERS THAT:

1. Within sixty days of the date of these Orders ('due date'), the Respondent pay the Applicant the sum of $63,438 ('payment').

2. Contemporaneously with the payment:

(a) the Applicant do all acts and things and sign all documents necessary to discharge the mortgages and loans (‘F Street, Suburb G Mortgages’) secured against the title to the property at F Street, Suburb G in the State of Victoria (‘F Street, Suburb G Property’) and pay out or refinance the debts secured by the said F Street, Suburb G Mortgages into his sole name; and

(b) the Respondent do all acts and things and sign all documents necessary transfer to the Applicant, at the Applicant's expense, all of her right, title and interest in the F Street, Suburb G Property.

3. If the Applicant fails to comply with Order 2(a) herein, the F Street, Suburb G Property be sold forthwith, with the Respondent to have the conduct of the sale, and the sale proceeds be applied as follows:

(a) first, to pay the costs, commissions and expenses of the sale including conveyancing fees;

(b) second, to discharge the F Street, Suburb G Mortgages;

(c) third, to pay all outstanding rates, taxes, outgoings and other encumbrances owing in relation to the property;

(d) fourth, to pay any taxation payable as a consequence of the sale; and

(e) fifth, the balance then remaining be paid to the Applicant.

4. Pending compliance with Orders 2 and 3 herein:

(a) the Applicant pay and be responsible for all instalments due under the F Street, Suburb G Mortgages and all rates, taxes and insurances in relation to the F Street, Suburb G Property as and when they fall due;

(b) the Applicant shall have the sole right to occupy the F Street, Suburb G Property;

(c) neither party shall encumber or further encumber the F Street, Suburb G Property without the prior written consent of the other party; and

(d) the parties are to hold their interests in the F Street, Suburb G Property upon trust pursuant to these Orders.

5. The Applicant vacate the F Street, Suburb G Property not less than seven days prior to the settlement of any sale pursuant to Order 3.

6. Within seven days of the date of these Orders, the Applicant do all acts and things and sign all documents necessary, at his own expense, to withdraw Caveat no. ... secured against the Title to the property at H Street, Suburb J in the State of Victoria (‘the H Street, Suburb J Property’).

7. If the Respondent fails to comply with Order 1 herein, the H Street, Suburb J Property be sold forthwith, with the Respondent to have the conduct of the sale, and the sale proceeds be applied as follows:

(a) first, to pay the costs, commissions and expenses of the sale including conveyancing fees;

(b) second to discharge the mortgage secured against the H Street, Suburb J property;

(c) third, to pay all outstanding rates, taxes, outgoings and other encumbrances owing in relation to the property;

(d) fourth, to pay any taxation payable as a consequence of the sale;

(e) fifth, so much of the payment as is then outstanding together with interest thereon at the rate set out in r.17.03 of the Family Law Rules 2004 adjusted monthly from the date, be paid to the Applicant;

(f) sixth, the balance be paid to the Respondent.

8. Pending compliance with Orders 1 and 7 herein:

(a) the Respondent pay and be responsible for all instalments due under the H Street, Suburb J mortgage and all rates, taxes and insurances in relation to the H Street, Suburb J Property as and when they fall due;

(b) the Respondent shall have the sole right to occupy the H Street, Suburb J Property;

(c) neither party shall encumber or further encumber the H Street, Suburb J Property without the prior written consent of the other party; and

(d) the parties are to hold their interests in the H Street, Suburb J Property upon trust pursuant to these Orders.

9. The Respondent vacate the H Street, Suburb J Property not less than seven days prior to the settlement of any sale pursuant to Order 7.

10. In the event that either party is liable for the payment of taxation consequent upon the sale of the F Street, Suburb G Property or the H Street, Suburb J Property then such taxation as is the subject of an assessment shall be paid in accordance with Order 3(d) and 7(d) upon completion of the sale of the property but in the event that such liability is not the subject of an assessment at that time then:

(a) such amount as is necessary to meet the payment of any anticipated liability shall be retained in an account in the name of, or operated by, the Respondent's solicitors pending the issue of an assessment for such liability at which time it shall forthwith be paid and the balance (if any) of such funds then distributed between the parties so as to give effect to Orders 3(e), 7(e) and 7(f);

(b) in the event that there is no agreement as to the amount to be paid and/or retained pursuant to Orders 3(d) and 7(d) and this Order, the parties shall forthwith appoint an accountant as agreed by them in writing to calculate the taxation to be paid/retained acting as an expert and not as an arbitrator and shall both meet equally all costs incurred in such appointment and shall be bound by such calculations;

(c) if the accountant to be appointed pursuant to this Order cannot be agreed between the parties, then such accountant be nominated by the President of the Institute of Chartered Accountants Australia and New Zealand, with any costs of such appointment to be met equally by the parties;

(d) and each party shall forthwith do all things and sign all documents necessary to give effect to this Order, including to cause the issue of an assessment of any taxation liability arising from the sale of the F Street, Suburb G Property or H Street, Suburb J Property.

11. The Applicant retain, to the exclusion of the Respondent, all of his right, title and interest in the following:

(a) subject to Orders 2, 3 and 6, the F Street, Suburb G Property;

(b) his Motor Vehicle 1;

(c) his interest in K Pty Ltd and L Pty Ltd;

(d) the funds owed to him, or already received by him, from K Pty Ltd;

(e) cash in any bank accounts in his sole name;

(f) his household chattels, furniture and personal effects; and

(g) his Super Fund M, Super Fund N and Super Fund O superannuation entitlements.

12. The Respondent retain, to the exclusion of the Applicant, all of her right, title and interest in the following:

(a) Subject to Orders 1 and 7, the H Street, Suburb J Property;

(b) her Motor Vehicle 2;

(c) the funds owed to her by Erskine Group;

(d) her interest in C Group Pty Ltd;

(e) her Sports Club membership;

(f) cash in any bank accounts in her sole name;

(g) the funds held in trust by Kenna Teasdale Lawyers; and

(h) her household chattels, furniture and personal effects.

13. The Applicant be responsible for and indemnify the Respondent in relation to:

(a) the F Street, Suburb G Mortgage in accordance with Order 2 herein;

(b) the car loan to Motor Vehicle 2 Finance associated with his Motor Vehicle 1;

(c) his credit card liabilities and personal loans in his sole or joint name;

(d) all past, present and future liabilities for L Pty Ltd, K Pty Ltd, P Pty Ltd, Q Pty Ltd, R Pty Ltd, S Pty Ltd, T Pty Ltd, U Pty Ltd, D Pty Ltd, W Pty Ltd and V Pty Ltd; and

(e) all other liabilities in his sole or joint name or encumbering any item of property to which he is entitled pursuant to these Orders.

14. The Respondent be responsible for and indemnify the Applicant in relation to:

(a) the mortgage secured against the title to the H Street, Suburb J Property;

(b) the car loan to X Car Finance associated with her Motor Vehicle 2;

(c) all past, present and future liabilities for C Group Pty Ltd and E Pty Ltd; and

(d) all other liabilities in her sole or joint name or encumbering any item of property to which she is entitled pursuant to these Orders.

15. Unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under the terms of these Orders:

(a) the parties 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;

(b) each party forego any claims they may have to any superannuation entitlements belonging to or earned by the other, now or in the future;

(c) insurance policies remain the sole property of the owner of the policy;

(d) funds in any bank accounts are to be retained by the account holder;

(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

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

16. In the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to s.106A of the Family Law Act 1975 (Cth) that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry, shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.

17. The Applicant pay the Respondent's reserved costs pursuant to the Orders made by Senior Registrar Hoult on 3 September 2020 fixed in the sum of $5,500.

All extant applications are dismissed. Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, I have determined that it is just and equitable to make orders adjusting the property interests of the parties, and that the parties' interests in property should be divided 60/40 in favour of the Wife. BACKGROUND The Wife is presently 52 years old. The Husband is presently 47 years old. They met in 2004 and commenced living together in 2006. They married in 2006. The one child of the relationship, Y, was born in 2008. The parties separated on 10 June 2016 and were divorced on 28 December 2018. The Husband is the sole director and shareholder of L Pty Ltd ('L Pty Ltd'). He describes himself as a 'small business owner'. As I understand it, he provides consulting services through L Pty Ltd. He currently derives an income through this business. The Wife is the sole director of C Group Pty Ltd ('C Group'). She is also a Director at the Erskine Group. Companies within the Erskine Group undertake consulting in the construction and infrastructure industry. Erskine Group is owned and managed by the Wife's sister, Ms A Beauman, and her brother-in-law, Mr Erskine. The Wife has worked for Erskine Group throughout the marriage. In recent times, she has performed work for Erskine Group through C Group. At the time of the hearing, the Wife was not presently working and was receiving JobKeeper payments. In 2007, the parties purchased the property at Z Street, Suburb AA in Victoria ('Z Street, Suburb AA Property'). The Z Street, Suburb AA Property was registered in the Husband's sole name. In 2008, the Wife received a $300,000 lump sum payment from BB insurance for loss of income. The income and net proceeds of the funds were applied toward the purchase of a property at F Street, Suburb G in Victoria ('F Street, Suburb G Property'). The F Street, Suburb G Property was registered in the Wife's sole name. In 2010, the Z Street, Suburb AA Property was sold for $1,030,000. In 2010, the parties purchased the property at CC Street, Suburb DD ('CC Street, Suburb DD Property') for $1,950,000. Sale proceeds from the Z Street, Suburb AA Property were applied toward the purchase of the CC Street, Suburb DD Property. The CC Street, Suburb DD Property was transferred into the Wife's sole name in 2013. In 2014, the parties purchased a property at F Street, Suburb G for $725,000. This property was registered in the Husband's sole name. It was subsequently sold in July 2015. The parties carried out renovations on the properties that they owned during the marriage. The Wife sold the CC Street, Suburb DD Property following separation in November 2017 for $3,600,000. In 2017, the Wife purchased the property at H Street, Suburb J in Victoria ('H Street, Suburb J Property') for $1,389,960 plus stamp duty and costs. The parties signed a document described as a 'Financial Agreement' in March 2018. The Husband currently lives in the F Street, Suburb G Property and pays the mortgage on it. The Husband has paid for X’s school fees following separation. The Wife is responsible for the mortgage payments on the H Street, Suburb J Property since separation.

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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