Albany and Albany

[2014] FamCA 973

FAMILY COURT OF AUSTRALIA

ALBANY & ALBANY [2014] FamCA 973

FAMILY LAW – PROPERTY – DECEASED ESTATE

APPLICANT: Ms Albany

RESPONDENT: Mr Albany (Deceased)

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7837 of 2012

DATE DELIVERED: 15 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 15 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr E. Woolf

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE 1^ST RESPONDENT: Mr S. Farmer

SOLICITOR FOR THE 1^ST RESPONDENT: Stephen Farmer & Associates

Orders

1. That, within 21 days, the First Respondent (“the Estate”):-

   (a)Transfer its interest in the real property situated at B Street, Suburb C (“the Suburb C Property”) and the contents of that property to the Wife, at the Wife’s expense;

   (b)Transfer the business licence numbered … to the Wife, at the Wife’s expense;

   (c)Sign all documents and do all things reasonably necessary to transfer to the Wife one half of the money (approximately $18,000) in the Commonwealth Bank account numbered … in the name of D Pty Ltd; 

   (d)Transfer the business (not including bank accounts other than that referred to      in the preceding sub-paragraph) that was previously operated by the late        husband in the name of D Pty Ltd and any remaining stock of that business to the Wife, at the Wife’s expense;

   (e)Pay any GST and income tax owing in respect of the operation of D Pty Ltd for the period up to 9 February 2014;

   (f)Transfer to the Wife all of the shares (approximately 15,000) held by the Estate in CabCharge Australia Limited; and

   (g)Transfer the two Van motor vehicles to the Wife at her expense

2. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   (a)Each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession or control of such party as at        the date of these orders (the furniture, personal possessions and like chattels in the Suburb C property being deemed to be in the possession of the Wife).

   (b)Monies standing to the credit of the parties in any joint bank account be divided equally between the parties.

   (c)Insurance policies remain the sole property of the owners thereof.

   (d)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.

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

3. That, save as otherwise provided in these Orders, the Wife shall have no other entitlement or claim to the assets of the Estate.

4. That the parties each execute all documents, instruments, deeds, contracts, transfers, records, minutes, authorities, releases and correspondence so required of them and otherwise do all acts and things to give effect to the provisions of these Orders.

5. That all extant applications be otherwise dismissed.

AND THE COURT NOTES

AThat these Orders are intended so far as is possible to finalise the financial relationship between the parties and to avoid further proceedings between them.

BFollowing the death of Mr Albany, the Wife and Mr E Albany are the remaining Appointors of the Albany Family Trust.  The Wife has agreed to sign all documents and do all things within her capacity to appoint Ms F an Appointor of the Albany Family Trust and as a director of Albany Nominees Pty Ltd.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Albany & Albany has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7837 of 2012

Ms Albany

Applicant

And

Mr Albany (DECEASED)

Respondent

REASONS FOR JUDGMENT

1. In the matter of Albany, I have before me today Mr Woolf appearing on behalf of the applicant wife, and Mr Farmer who represents Ms F who is the personal representative of the late Mr Albany.  The property proceedings before the Court relate to what was a long marriage between the wife and the deceased husband.  There is a pool of assets of some $1.47 million.  The husband passed away during the course of the proceedings, and it is now his daughter who represents the interests of the estate. 

2. I am told by the solicitors representing each of the parties that the family is united in their desire to have orders made in the terms of the minute that is signed by the wife and Ms F.  The proposed settlement provides for a 67 per cent adjustment of that pool to the wife.  That adjustment reflects the fact that she received an inheritance of some $180,000 late in the marriage.  It also reflects the fact that, in terms of section 75(2) considerations, the weight of those considerations must of necessity flow in favour of the wife in circumstances where the husband is deceased. 

3. I am satisfied that it is just and equitable to make orders.  I am satisfied that the adjustment provided by the orders takes into account the relevant considerations set out in s 79(4) of the Family Law Act. 

4. In the circumstances I will make orders in the terms of the minute signed by the parties.  I will mark the minute with the letter “A”, and direct that the solicitor for the respondent engross those orders, and that they be filed at the court within seven days.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 15 July 2014.

Associate:

Date:  15 July 2014