Fedele and Fedele

[2008] FamCA 167

FAMILY COURT OF AUSTRALIA

FEDELE & FEDELE [2008] FamCA 167

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – s 79(2)

Family Law Act 1975 (Cth)

APPLICANT: MR FEDELE

RESPONDENT: MRS FEDELE

FILE NUMBER: MLF 2927 of 2006

DATE DELIVERED: 12 MARCH 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 12 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS TULLOCH

SOLICITOR FOR THE APPLICANT: GRAHAM LEGAL PTY LTD

COUNSEL FOR THE RESPONDENT: MR SALAMANCA

SOLICITOR FOR THE RESPONDENT: BRUCE C. CHALMERS

ORDERS

IT IS ORDERED BY CONSENT:

1. THAT within sixty (60) days of the date of these orders (“the date”) the wife:

   a.pay to the husband the sum of $70,000.00 (“the payment”);

   b.do all such acts and things and sign all such documents as may be necessary to:

   i.resign as a director of Fedele Pty Ltd (“the trustee company”);

   ii.transfer to the husband at his expense any shareholding in the trustee company;

   iii.transfer to the husband at his expense all of her right title and interest in the Fedele Family Trust (“the trust”);

   iv.forgive any beneficiary loan accounts of the trust in which she may have any interest; and

   v.amend the Deed of Settlement of the trust to substitute and/or include the husband and the wife as capital beneficiaries.

2. THAT contemporaneously upon the wife complying in full with paragraph 1 of these orders the husband:

   a.do all such acts and things and sign all such documents as may be necessary to transfer to the wife at her expense all of his right title and interest in the real properties situate at and known as

   i.N property; and

   ii.B property.

   b.do all such acts and things and sign all such documents as may be necessary to cause the trustee company to transfer to the wife pursuant to the trust deed, at her expense, all of its right title and interest in the following real properties situate and known as:

   i.M property; and

   ii.E property.

   c.do all such acts and things and sign all such documents as may be necessary to amend the Deed of Settlement of the trust to substitute and/or include the husband and the wife as capital beneficiaries.

   d.save as provided by paragraph 3 of these orders, indemnify the wife and keep her indemnified with respect to all liabilities of the trustee company and the trust including but not limited to liability for the mortgage to Maxi Loans (“the mortgage”) secured against the real property situate at and known as C property in the State of Victoria and all taxation and other like liabilities.

   e.refinance the mortgage into his sole name or the sole name of any other legal entity nominated by him.

3. THAT the parties each remain responsible for:

   a.any personal taxation liabilities arising from monies distributed to them from the trust; and

   b.for one half of all taxation and other liabilities of the trust which may be currently outstanding and which may continue to accrue pending compliance in full with paragraphs 1 and 2 of these orders, save for the mortgage which shall be the husband’s sole responsibility.

4. THAT in the event that the payment is not made by the date the wife to do all such acts and things and sign all such documents as may be required to sell E property (“the sale”) upon such terms and conditions as may be agreed between the parties.

5. THAT upon the completion of the sale the proceeds to be applied as follows:

   a.first, to pay all costs, commissions and expenses of the sale;

   b.secondly, to discharge any encumbrances affecting E property;

   c.thirdly, to pay the sum of $70,000.00 to the husband together with compound interest thereon at the rate of 11.5% per centum per annum adjusted monthly from the date to the date of payment; and

   d.fourthly, the balance to the wife.

6. THAT each party have liberty to apply with respect to the terms and conditions of the sale and the implementation of any part of these orders.

7. THAT any liability outstanding as at this day relating to the nine properties named herein, save for those relating to N property and the mortgage, be paid equally by the parties and be adjusted in accordance with usual conveyancing practice.

8. THAT in default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these orders, a Registrar of the Family Court at Melbourne to be appointed pursuant to Section 106A of the Family Law Act to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.

9. THAT from this day and pending both parties complying in full with paragraphs 1 and 2 of these orders:

   a.the wife to have sole use and occupation of N property and pay all rates, taxes and outgoings of the said property;

   b.the wife to be entitled to all rental monies received by her and the trust and make payment of all liabilities with respect to:

   i.B property;

   ii.M property; and

   iii.E property;

   c.the husband to be entitled to all rental monies received by him and the trust and make payment of all liabilities with respect to:

   i.C property;

   ii.M2 property;

   iii.H property;

   iv.E2 property; and

   v.E3 property.

   d.the parties hold their respective interests in each of the real properties upon trust pursuant to these orders.

   e.neither party encumber any of the real properties without the consent of the other party save that the wife be at liberty to encumber a property to effect the payment to the husband.

10. THAT within seven (7) days of the date of these orders the wife to make available for collection by the husband at his expense from N property the husband’s personal photographs and personal ornaments.

11. THAT unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

    a.each party to be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date.  All of the chattels in N property are considered to be in the possession of the wife.

    b.each party hereby retain any superannuation entitlements belonging to or earned by each of them;

    c.all insurance policies to become the sole property of the beneficiary named hereunder;

    d.each party to 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.

12. THAT all extant applications both interim and final and including the Form 1 filed 17 October 2006 and the amended Form 1 filed 23 October 2007 and all responses thereto be otherwise dismissed.

13. LIBERTY to apply reserved to either party as to the enforcement of these orders.

    IT IS CERTIFIED

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

AND THE COURT NOTES:

A.THAT he parties intend that these orders shall as far as practicable determine the financial and other relationships between them.

B.THAT the parties intend that these orders shall effect an overall division of all assets, liabilities and financial resources to the extent of approximately 50.5% to the wife and 49.5% to the husband.

C.THAT the orders are agreed to by the husband and the wife on the basis that no third party claim is made against the assets of the trust.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2927 of 2006

MR FEDELE

Applicant

And

MRS FEDELE

Respondent

REASONS FOR JUDGMENT

1. The matter of Fedele was before me in the defended list of cases.  Ms Tulloch of counsel appeared for the husband.  Mr Salamanca of counsel appeared for the wife.

2. The matter was part heard before me and the husband was giving evidence when it resolved in out of court discussions.  I have allowed the parties overnight to draw and settle proposed minutes of orders.  I now have read those orders.  Both parties and their counsel are in court this day. 

3. The pool of assets is approximately $3,100,000, subject to some adjustments, which Ms Tulloch has outlined.

4. This was a marriage of 29 years, and four adult children, three of whom were raised by the parties.

5. I have read all of the affidavits in the matter.  The ambit of the claim in the case opened was that each party sought a five per cent loading for their respective contributions and section 75(2) factors. 

6. The ultimate settlement sees a division close to 50/50 and I regard that as proper. I have indicated to counsel that they should record on their back sheets, and I pronounce, pursuant to section 79(2) of the Family Law Act 1975 the appropriate declaration that these orders are just and equitable.

7. I am confident that the outcome achieved in negotiation by the parties, and with the assistance of experienced counsel and solicitors, is proper.  I do intend to make these orders.

8. In the original draft of orders there was a notation which was to the effect that if any beneficiary of the Family Trust was to make a claim then the parties would have liberty reserved to each of them to bring the matter back to court for a further re‑examination of the orders and/or a re‑hearing of the case.

9. The intent of the husband and wife is very clear, and that is that they have apportioned between them their assets, including those of the Trust which they control.  It may be that there are particular provisions within this Trust for the children or grandchildren or others to be the recipient of the capital assets, and for the parties to share its income.  I understand the orders will provide for an appropriate amendment of the Trust deed and for the parties to sign all documents and do all acts and things to facilitate what they have agreed upon by way of asset division.  In particular that means the various real properties are to be divided between each of them in accordance with these orders.

10. The beneficiaries, other than the husband and wife, were not served and are not party to the proceedings.  I do not have jurisdiction to make orders binding them without notice.  Nevertheless, I have confirmed with counsel, and in the presence of the husband and wife and I am wholly satisfied that these orders are intended to be final, and they intend to divide the assets of the parties and their Trust. 

11. On that basis, I will give liberty to apply, incorporated within the orders but only as to enforcement issues.  I will have these brief ex tempore reasons transcribed and placed on the file to record the approximate 50/50 division of assets, and that neither party is hiding behind the structure of the Family Trust, and that the division of assets includes those personally owned by the husband and/or wife, or otherwise owned within the Trust.

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

………………………………………………………..
Associate:          
Date: 17 March 2008