Assink & Ferro
[2025] FedCFamC1F 61
•4 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Assink & Ferro [2025] FedCFamC1F 61
File number(s): BRC 2717 of 2022 Judgment of: HOGAN J Date of judgment: 4 February 2025 Catchwords: FAMILY LAW – PROPERTY LAW – Where consent orders were made on the second day of trial – Where those orders are in terms which are just and equitable Legislation: Family Law Act 1975 (Cth) Division: First Instance Number of paragraphs: 9 Date of hearing: 4 February 2025 Place: Brisbane Counsel for the First Applicant: Mr Alexander Solicitor for the First Applicant: AE & Associates Counsel for the Second Applicant: Ms Karaman Solicitor for the Second Applicant: Morrison Specter Attorneys at Law Solicitor for the Respondent: Mr Wu, Aston Lawyers ORDERS
BRC 2717 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ASSINK
First Applicant
MS B FERRO
Second Applicant
AND: MS C FERRO
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
4 FEBRUARY 2025
IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER PURSUANT TO S 79 OF THE FAMILY LAW ACT 1975 (CTH) THAT:
1.Upon not less than 30 days written notice by the Second Applicant to the First Applicant, the First Applicant must repay $1,700,000 (the Loan) to the Second Applicant, together with interest calculated at 5% per annum from the date of these Orders until repayment, to an account nominated by the Second Applicant.
2.Within 90 days of the date of these Orders, the Applicant is to procure a Release of Mortgage from D Bank (“the Release”), releasing the Respondent from the Mortgage registered on the property located at E Street, Suburb F in the State of Queensland and being the whole of the land more particularly described as Lot … on Survey Plan … contained in Title Reference … (“the E Street Property”).
3.Contemporaneously with provision of the Release of Mortgage to the Respondent, the Respondent is to take all steps and do all things to transfer her interest in the E Street Property to the First Applicant.
4.Upon transfer of the Respondent’s interest in the E Street Property to the First Applicant, the First Applicant shall indemnify the Respondent in relation to all tax of whatever nature and associated expenses arising from her ownership of the E Street property.
5.The First Applicant and the Respondent are restrained by injunction from selling, disposing, encumbering or otherwise dealing with the E Street Property, save for to comply with these Orders. Upon compliance with Orders 1, 2 and 3 the injunction is discharged.
Default Provisions
6.In default of the First Applicant’s compliance with his obligations set out in Orders 1 or 2, the First Applicant (and Respondent, should the Respondent still be on title at the time) shall do all acts and things to sell the E Street Property pursuant to the sale provisions below, and, upon completion of the sale of the E Street Property, the proceeds shall be applied as follows:
(a)firstly, to pay all costs, commissions and expenses of the sale and to pay all Council water and rates, taxes and like apportionable outgoings in respect of the E Street Property;
(b)secondly, to discharge the E Street Mortgage and any other encumbrance affecting the E Street Property;
(c)thirdly, to repay the Loan to the Second Applicant, together with any interest; and
(d)fourthly, to pay the balance to the First Applicant.
7.The E Street Property shall be sold as follows:
(a)the Applicant shall appoint an agent ("the Agent") within seven (7) days of default of his obligations in Orders 1 or 2;
(b)the listing price shall be as agreed in writing between the First Applicant and the Second Applicant, and in the absence of agreement as nominated by the Agent, but no less than $2,550,000;
(c)in the event that the E Street Property has not been sold on or before a date ninety (90) days after the date of listing, the First Applicant shall make all such arrangements and do all such acts and pay all monies necessary to procure a sale by public auction:
i.with the auctioneer to be appointed by the First Applicant;
(i)the reserve price shall be as agreed between the First Applicant and the Second Applicant, in writing, or failing agreement, as proposed by the auctioneer;
(ii)in the event that the property is not sold by auction or private negotiation within fourteen (14) days of the auction, the First Applicant shall do all acts and things to cause further auctions, each month with the price as agreed by the Second Applicant and the First Applicant, in writing, and failing agreement as nominated by the auctioneer.
Retention of Property & Indemnities
8.The First Applicant will retain, to the exclusion of the Second Applicant and the Respondent:
(a)the E Street Property (provided he has complied with the obligations set out in Orders 1 and 2);
(b)any interest in the property located at G Street, Suburb H, City J, Region K, Country L;
(c)Motor Vehicle 1;
(d)any funds in ANZ bank account #...69;
(e)any superannuation entitlements in his name; and
(f)furniture, chattels, bags and jewellery in his possession.
9.Unless otherwise specified in these Orders, the First Applicant shall be solely responsible for and indemnify the Respondent and keep her indemnified in relation to all liabilities in his name, and specifically:
(a)the Registered D Bank Mortgage No....81 secured against the E Street Property (“E Street Mortgage”); and
(b)the Second Applicant’s Loan.
10.The Respondent shall retain, to the exclusion of the First Applicant and the Second Applicant:
(a)the property located at M Street, Suburb F in the State of Queensland and being the whole of the land more particularly described as Lot … on Survey Plan … contained in Title Reference … (“the M Street Property”);
(b)any interest in N Pty Ltd;
(c)any interest in the N Family Trust;
(d)any funds in ANZ bank account #...69;
(e)any funds in ANZ bank account #...81;
(f)any funds in CBA bank account #...46;
(g)any superannuation entitlements in her name; and
(h)furniture, chattels, bags and jewellery in her possession.
11.Unless otherwise specified in these Orders, the Respondent shall be solely responsible for and indemnify the Applicant and keep him indemnified in relation to all liabilities in her name, and specifically:
(a)any and all liabilities howsoever arising in respect of the M Street Property; and
(b)the entities referred to in 10(b) or (c) above.
12.Within seven (7) days of the date of these Orders, the First Applicant and the Respondent are to do all acts and things and sign all such documents as may be required to close any joint bank accounts with the balance (if any) to be divided equally between them, including:
(a)ANZ bank account #...69.
13.Within thirty (30) days of the date of these Orders, the First Applicant must sign all documents as may be required to relinquish any interests in the company N Pty Ltd and the N Family Trust and the Respondent will forthwith release and indemnify the Husband for all apportionable taxes, penalties and debts with respect to the company N Pty Ltd and the N Family Trust of whatsoever nature and kind, with any costs of the transfer to be borne by the Respondent and with the Respondent to cause any necessary documents to be prepared and provided to the First Applicant, by his solicitors.
Caveats
14.To enable the First Applicant and Respondent to deal with the E Street Property in compliance with Orders 2 and 3, the Second Applicant shall do all acts and things and sign all such documents as may be required to remove the registered Caveat secured against E Street Property and provide to the Husband and Wife or their agents evidence of lodgement with the Titles Office of Form 14 Request to Remove Caveats in registrable form for the property together with an undertaking that the Second Applicant will answer any requisitions and bear any costs relating to such requisitions.
15.Upon transfer of the E Street Property into his sole name, the First Applicant shall do all acts and things and sign all such documents as may be required to grant the Second Applicant a non-lapsing Caveat secured against E Street Property.
16.The Second Applicant shall do all acts and things and sign all such documents as may be required to remove the registered Caveat secured against the M Street Property and provide to the Wife or her agent evidence of lodgement with the Titles Office of Form 14 Request to Remove Caveats in registrable form for the property together with an undertaking that the Second Applicant will answer any requisitions and bear any costs relating to such requisitions.
Other Orders
17.If either party refuses or neglects to sign (within seven (7) days of a written request to do so) any documents necessary to give effect to the terms of these Orders, a Judicial Registrar of the Federal Circuit and Family Court of Australia (Division 1) is hereby appointed pursuant to the provisions of s 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of such party.
18.All outstanding applications are otherwise dismissed.
19.Each party is to bear their own costs in the property proceedings.
AND IT IS FURTHER ORDERED THAT:
20.The original Minute of Consent Orders signed by the parties be placed and kept on the Court file.
21.The final hearing dates of 5, 6, 7 February 2025 are vacated.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 Assink & Ferro has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
I have heard submissions in support of the Minute of Order provided to the Court that has been signed by the parties.
The submissions include the support of each of the parties (who remain parties to the litigation) to the making of the orders. By that consent and request that they be made, each party advances to the Court the proposition that the orders are in terms which are just and equitable.
The circumstances of this matter include, I think uncontroversially, that these parties were engaged in a relatively short relationship, which involved cohabitation of no longer than four years.
If one looks to the property that is owned jointly by them – namely the E Street, Suburb F property, said to be valued at a little over two and a half million dollars – it seems to me that the uncontroversial evidence would point to a conclusion that the acquisition of that property was made possibly only by the provision of funds by the Second Applicant. That circumstance is significant, particularly given the relatively short period of these parties’ cohabitation.
It is also, it seemed to me, fairly uncontroversial on the evidence before the Court that, in addition to the provision of those funds, the Second Applicant provided to the parties, for their joint support, various other funds.
If one excludes the commercial loan secured over the E Street property, which currently stands at $643,036.43 according to the Balance Sheet filed in the proceedings, I think it can be seen fairly easily that the provision of the funds of no less than $1.7 million already discussed represents when considered – together with the value of the motor vehicle (now said to be $150,000) and two handbags (which one could take at a value, for the purpose of this analysis, of the combination of their purchase price of about $27,000) – 81.57 per cent of that pool: exclusive of the $643,000-odd obtained by joint borrowings.
Having regard also to what seems uncontroversial evidence in this proceeding, it seems more likely than not that the parties’ ability to obtain those funds was highly likely to have been made possible as a consequence of the various acquisitions and sale of other real property which preceded the acquisition of the E Street property. Again, those acquisitions, it seems, uncontroversially, have only been made possible as a consequence of the provision of financial support by the Second Applicant.
Noting the consent of the parties - arrived at in this case, no doubt (as in the vast majority of cases in this Court) for a variety of reasons, which include certainty, the removal of the prospect of further costs incurred both in monetary terms and in an emotional sense - I am persuaded, having regard to the submissions made in answer to the very direct questions deliberately posed of Counsel for the Applicants yesterday and noting the opportunity afforded to the Respondent overnight to consider the position, on balance that the orders in these circumstances (particularly noting the relatively short relationship of the parties) are within the wide bounds that may be regarded as being orders which are just and equitable.
For those very short reasons delivered orally, I will make orders in terms of the Minute signed by the parties, as amended by me during the course of discourse with the legal representatives for the parties. The orders will issue in the terms I have outlined.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 11 February 2025
0
0
1