Cortini & Cortini

[2008] FamCA 700

FAMILY COURT OF AUSTRALIA

CORTINI & CORTINI [2008] FamCA 700

FAMILY LAW – PROPERTY SETTLEMENT - S79(2) Just and equitable

Family Law Act 1975 (Cth)

APPLICANT: Mrs Cortini

RESPONDENT: Mr Cortini

FILE NUMBER: MLF 3068 of 2005

DATE DELIVERED: 14 AUGUST 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 14 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR GEDDES QC with MS FOURFOURIS-MACK

SOLICITOR FOR THE APPLICANT: VINCENT VERDUCI & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR SMITH

SOLICITOR FOR THE RESPONDENT: ALLAN McMONIES

ORDERS

UPON THE UNDERTAKING given to the Court personally by the husband that he will not:

(i)harass, threaten or intimidate the wife;

(ii)approach, telephone or contact the wife except in company of a police officer, or by direction or order made by a court exercising jurisdiction under the Family Law Act 1975;

(iii)knowingly be at or within 200 metres of premises situate at F or any other premises where the wife lives or works except in the company of a police officer;

(iv)damage property owned by the wife;

(v)cause another person to engage in conduct prohibited by this order.

UPON THE UNDERTAKING given to the Court personally by the wife that she will discharge the Intervention Order made 30 April 2008 with no order as to costs.

IT IS ORDERED:

1. THAT all previous Orders including Orders as to costs be discharged.

2. THAT each party otherwise pay their own legal costs.

3. THAT the husband pay to Verduci & Associates the sum of $137,500 (“the payment”) on or before 14 November 2008 (“the date”).

4. THAT the wife retain her right title and interest the following properties:

   (a)the former matrimonial home situate and known as F property, being the land contained  in Certificate of Title Volume … Folio …;

   (b)property situate and known as M property, being the land contained in Certificate of Title Volume … Folios … & …;

   (c)property situate and known as B property being the land contained in Certificate of Title Volume … Folio … & …;

5. THAT the husband transfer to the wife at the expense of the wife all of his right and title and interest in the properties situate and known as Units 1, 2, 4, 5, 7 and 9 at E, being the land contained in Certificates of Title Volume … Folios ….

6. THAT the husband transfer to the wife at the expense of the wife all of his right title and interest in the property situate at N, being the land contained in Certificate of title Volume … Folio …, (subject to the existing mortgage to NAB registered No …).

7. THAT as of 14 August 2008, the wife receive all of the rental from Units 1, 2, 4, 5, 7 and 9 at E; B property; M property and N property.

8. THAT the husband be and hereby is restrained from further encumbering the N property, (the current balance being approximately $52,000).

9. THAT the husband, transfer to the wife at the expense of the wife his interest in the Trend West Time Share.

10. THAT the husband transfer to the wife at the expense of the wife all his right title interest in the Mercedes motor vehicle registration … (including the electronic set of car keys).

11. THAT the wife retain the Commonwealth Bank shares and Telstra shares held on trust for the children.

12. THAT the wife retain the sum of $134,500 pursuant to paragraph 2 of the Orders of Carter, J made on 29 May 2007, and the sum of $124,000 pursuant to paragraph 8 of the Orders of Dessau, J made on 24 November 2005 and that such sums be categorised as lump sum spousal maintenance.

13. THAT the wife will contemporaneously with the payment transfer to the husband and/or his nominee at his expense all of her right, title and interest in the property situate at W being the land contained in Certificate of title Volume … Folio ….

14. THAT the wife will contemporaneously with the payment relinquish all claims and shall have no claim or right to claim, any right, title or interest in, or income, or payment from the Cortini Family Trust.

15. THAT the husband pay, and indemnify the wife absolutely for all liabilities without limiting the generality of the above for any loans tax or duties past, present or future howsoever arising from the activities of the husband, the wife, the Cortini Superannuation Fund, AG & Co (professional firm); the S Trust and the Cortini Family Trust, save that the wife shall be responsible for her own personal income tax as and from 30 June 2005 and any outstanding interest or penalty.

16. THAT the husband at his expense do all such acts and things necessary to obtain a discharge of the Mortgage Registered No … to the National Australia Bank and registered over the property at F.

17. THAT the wife be liable for and indemnify the husband for all payments due to Commonwealth Bank under Mortgage Registered No. … and registered over the property at B.

18. THAT the husband will do all such acts and things and sign all documents necessary to obtain a discharge of the Mortgage Registered No … [over B property] to the Commonwealth Bank when required to do so by the wife.

19. THAT the husband at his expense do all such acts and things necessary to obtain a discharge of the Mortgage Registered No … to National Australia Bank and registered over the properties at Units 1, 2, 4, 5, 7 and 9 at E.

20. THAT the husband pay and indemnify the wife against all payments and liability pursuant to the above Mortgages.

21. THAT the husband forthwith do all necessary acts and things and sign all necessary documents to remove the wife as a guarantor of all loans and mortgages held with National Australia Bank including all guarantees for accounts held by AG & Co (husband’s professional firm).

22. THAT pending the husband’s compliance with order 3 hereof, the husband be and hereby is restrained from further encumbering or disposing of his interest in the property  situate and known as G property being the land contained  in Certificate of Title Volume … Folio ….

23. THAT in the event that the whole of the payment has not been made by the date in paragraph 3 herein, then the husband do all such acts and things and sign all such documents necessary to transfer to the wife as trustee for sale of the real property situate and known as G property being the land in Certificate of title Volume … Folio … (“the sale”) and the proceeds of sale to be applied:

    (a)first to pay all costs, commissions and expenses of the said sale;

    (b)secondly to discharge the mortgage and any other encumbrance affecting the real property;

    (c)thirdly so much of the payment as is then outstanding together with interest thereon at the rate prescribed by the Family Law Rules from time to time from the date to the wife;

    (d)fourthly the balance to the husband.

24. THAT the husband indemnify the wife and keep her indemnified in relation to all liabilities arising from any involvement and/or association with T Pty Ltd as a director or office holder including but not limited to any taxation liability.

25. THAT the wife shall forthwith resign as a director of T Pty Ltd and transfer any shareholding to the husband or his nominee at the expense of the husband.

26. THAT there be a Superannuation splitting order pursuant to s 90MT(1) of the Family Law Act 1975 and the wife transfer all her interest in the Superannuation benefit or entitlement to the husband, at the expense of the husband, so that the husband holds 100% of the funds in the Cortini Superannuation Fund.

27. THAT the wife sign all papers, documents as necessary to resign as Trustee of the Cortini Superannuation Fund, at the expense of the husband.

28. THAT the husband forthwith resign as managing agent and relinquish the management of Owners Corporation at E property.

29. THAT the husband and wife pay any outstanding fees due to Mr. O for the preparation of his report pursuant to Procedural orders made by Young J on 13 March 2008 and 19 June 2008 in equal shares

30. THAT unless otherwise specified in these Orders and save for the purpose 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 of such party as at the date of these Orders, furniture, personal possessions and like chattels in the former matrimonial home being deemed to be in the possession of the wife:

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

    (c)insurance policies remain the sole property of the beneficiary named therein:

    (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.

31. THAT all extant applications for property settlement, spousal maintenance and departure from administrative assessment of child support be dismissed and the proceedings be removed from the docket of Young J.

32. THAT all documents produced to the Court on subpoena be returned by the Subpoenas Clerk Family Court Melbourne Registry to the person or organization who produced the documents to the Court.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel including Senior Counsel for each of the husband and wife.

IT IS NOTED

A.THAT the parties intend that these Orders shall finally determine as far as is practicable the financial relationship between the parties and avoid further proceedings between them.

B.THAT the parties have entered into a Binding Child Support Agreement this day.

C.THAT upon the undertaking given by the husband to discontinue his Appeal in the County Court on 19 August 2008, the wife will seek to discharge the Intervention Order made  on 30 April 2008,  with no Order as to Costs.

D.THAT the husband states that there are no arrears or amounts outstanding to the relevant Owners Corporations in respect of properties the wife is to retain pursuant to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Cortini & Cortini is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3068 of 2005

MRS CORTINI

Applicant

And

MR CORTINI

Respondent

REASONS FOR JUDGMENT

1. The matter of Cortini has been before me on the basis of an ongoing defended hearing.

2. Mr Geddes, one of Her Majesty's Counsel, together with Ms Fourfouris-Mack, junior counsel, appear for the wife.  Mr Smith of counsel appears for the husband, instructing solicitors have been in court for at least the majority of this hearing.

3. The matter has settled at a time when it was part-heard before me.  The wife was in cross‑examination.  Her other witnesses had yet to give evidence and the respondent had not commenced to present his case to the court.

4. I do not propose to set out the substantial background history and facts that are now known to me.

5. The parties were in dispute on many, many factual issues.  As an overview they were married for 14 years, but there was a significant difference as to whether there was any permanent relationship or cohabitation prior to marriage.  That matter remained unresolved.

6. Separation occurred in May 2005 and the parties have been in conflict since that date. 

7. There are two children of the marriage.  They live with the wife.  They are both at secondary school.  There is a separate child support agreement that accompanies these orders and the parties now invite the court to understand that appropriate financial provision is made for their welfare, education and upbringing. 

8. The identity of the pool of assets or at least the valuation of the pool of assets was in dispute.  There was evidence to be given by the parties and by witnesses, but the significant variation was, in round figures, between a sum of approximately $5.35 million and $5.9 million. 

9. A compromise valuation pool of $5.6 million was initially adopted by the husband's counsel in opening the case and, as I now understand for the purposes of settlement negotiations and the order now before me, the pool of assets has generally been accepted to be at or around that mid-range figure.  Ultimately the specific asset pool does not have to be determined by the court, as the parties have negotiated a settlement in the full knowledge of the issues in dispute and their various valuation evidence. 

10. Primarily the asset pool is made up of real property.  The acquisition of that property and the initial contribution of the husband was set out in material before the court.  Again, I do not traverse those matters and facts and do not make findings that otherwise I would have given judgment upon.  The matter was extensively prepared.  The affidavits are substantial.  There were summary of argument and summary of financial assets before me. 

11. The property settlement has been concluded with a retention by the wife of properties or various transfers of properties, together with an adjust cash payment of $137,500.  The husband knows the deadline for the payment of that sum.

12. There are various other financial adjustments dealing with moneys previous paid to or on behalf of the wife pursuant to orders of this court and/or shares held by the children and other various assets and investments. 

13. In terms of superannuation there is to be a splitting order and the wife's member's benefit entitlement is to be transferred to the husband forthwith. 

14. The orders as presented to me cover various procedural steps in case of default which clearly should not occur.  There is a clear explanation in the orders of which party is taking over respective mortgages and other liabilities and providing an indemnity.  There is to be a clean break in respect of the family trust and other trusts and corporate entities and the husband will be and remain responsible for the ownership, management and financial dealings thereof. 

15. With the background therefore of both the case and of these orders, the issue to the court is to determine whether the settlement is just and equitable. The court is allowed a reasonable ambit of discretion and whilst I would have certainly come to a very specific conclusion, it is not now necessary for me to go into particular findings in relation to contribution, both financial and non-financial, and as homemaker and parent and otherwise as provided for in s 79(4) of the Family Law Act 1975.

16. Interestingly this case was opened on the basis that the various s75(2) factors were of little force or effect in this case and that was the position of counsel for both parties.  I may not have agreed and there may have been aspects of the judgment which incorporated various factors.  Nevertheless, my only task at this time is to determine whether this settlement is just and equitable.        

17. It may be that the settlement is not precisely what I would have ordered, but I balance the experience of counsel, the work of solicitors, the level of investigation, all of the issues of financial disclosure, however long or hard that process may have been. 

18. The husband is an experienced businessman and I can comfortably rely upon the fact that he should have a very clear understanding of the orders that he has now executed by way of consent. 

19. I am likewise comfortable that the wife has had the opportunity for an independent accountant to advise her, has the benefit a single expert affidavit and valuation and has her experienced legal team.  In any event, she has also a level of understanding and knowledge of the assets. 

20. It can be clearly said that both parties have shown a level of determination throughout the proceedings not to advantage the other and therefore these orders have been hard in negotiation, that is obvious from the fact that the matter has effectively been stood down for more than a day and counsel have spent much time and effort in trying to bring about a resolution.  It is now nearly quarter past five and that in itself highlights that the parties have not had just part of yesterday and/or the many other earlier opportunities, but also the whole of today to bring about this settlement.  As they have had such extended time and opportunity that is another factor that balances the justice and equity to these orders.

21. As an overview and despite any claims in affidavits to the contrary, there are, by community standards, substantial assets in this case.  Both the husband and wife will have sufficient assets, an ability to receive income therefrom to provide for themselves and, as they may determine, their children.  Both parties will clearly have a home and an income stream or otherwise can sell assets and live very comfortably by community standards. 

22. Again, it is not necessary for me now to dwell on contribution issues.  I well understand the initial contribution of the husband and his hard work through the marriage.  He was clearly the corporate, business and legal partner of the marriage.  In contrast the wife may have given some level of business support, albeit largely passive, but she was the homemaker and parent and has an ongoing primary responsibility for the upbringing and welfare of the children. 

23. I know that separately earlier orders have been made in relation to parenting and children's issues that I will not now revisit. 

24. Within that overview, therefore, it is necessary for me to determine whether these orders are just equitable. Whilst I repeat they are not identical in any way to what I would have ordered, I am satisfied to find that they fall within a reasonable ambit of being both appropriate and specifically just and equitable. I therefore declare pursuant to s79(2) of the Family Law Act 1975 that the property settlement and financial orders negotiated by the husband and wife are just and equitable.

25. The other matter I wish to record is that the wife's case was forcefully opened on the basis of non-disclosure.  I have listened to the opening of Senior Counsel and observed the various financial statements which are filed in the proceedings or are exhibits in the proceedings.  I draw no conclusion from the matters opened by Mr Geddes.  The husband may well have had a full, valid and logical explanation for his actions.  He has not yet the opportunity and now will not have the opportunity to give evidence.  On that basis I draw no inferences and make no findings of fact.  From the court's point of view there is no matter to be further considered on the allegations which I make no finding upon in any way contrary to the interests of the husband.  I make no criticism of the wife or her legal team for raising issues which otherwise would have been no doubt fully contested and litigated and been the subject of a judgment.  Accordingly, there are no matters of interest to the court or which can properly be further considered by the court and there should be no matters in that regard to be further considered by or on behalf of the parties.

26. I have separately read into the court transcript the undertakings of the husband and wife.  They have been personally given by the parties.  They are accepted by the court and they will form part of the orders when executed by the court.  There are various notations to the orders that likewise are to be incorporated. 

27. The outcome of this settlement is that all proceedings between the parties in this court are finalised.  There is a s81 notation to accompany the orders. 

28. I will have these extempore reasons transcribed and placed upon the court file and made available to the parties.  There should be an additional order added to the orders to that effect, that is, that the transcript of the reasons for judgment be taken out, be placed upon the court file and be made available to the parties. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: