FEDERAL CIRCUIT COURT OF AUSTRALIA
| KADER & KADER | [2016] FCCA 2684 |
| Catchwords: FAMILY LAW – Final property adjustment – limited factual issues in dispute – finding of equality of contribution – consideration of section 75(2) factors – adjustment made in favour of the wife. |
| Legislation: Family Law Act 1975, ss.55A, 75(2), 79, 117, 117C Federal Circuit Court Rules 2001, Part 21 |
| Cases cited: Pierce & Pierce [1998] FamCA 74 Haset Sali v SPC Ltd [1993] HCA 47 Aon Risk Services & Australian National University [2009] HCA 27 Expense Reduction Analysts Group Proprietary Limited & Armstrong Strategic Managing and Marketing (2013) 303 ALR 199 I & I (No.2) (1995) FLC 92-625 Browne & Green (2002) FLC 93-115 Harris v Harris (1991) FLC 92-254 Browne & Dunn (1893) 6 R 67 (HL) Lennon & Lennon (Costs) [2012] FamCA 116 Robinson & Higginbotham [1991] FamCA 4 Bryant v Hawkesbury Radio Communication Co-operative Society Limited [2014] NSWSC 848 |
Applicant: | MS KADER |
| Respondent: | MR KADER |
| File Number: | PAC 3830 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 23 March 2016 |
| Date of Last Submission: | 23 March 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 23 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Morley |
| Solicitors for the Applicant: | Reimer Winter Williamson The Lawyers |
| The Respondent appeared in person |
ORDERS
Within thirty-five (35) days of the date of these Orders, the Respondent husband shall:
(a)Pay to the wife a sum of $121,472 (comprising a payment by way of property adjustment of $110,722 together with costs to be paid pursuant to these Orders in the sum of $10,750); and
(b)Do all acts and things necessary to transfer to the Applicant wife all of his right, title and interest in the property known as, Property E being the whole of the land contained in Folio Identifier (omitted) (hereinafter referred to as “the Property E property”); and
(c)Refinance and discharge the mortgage secured against the property known as Property B, being the whole of the land contained in Folio Identifier (omitted) (hereinafter referred to as “the Property B property”) so that any mortgage encumbering that property stands in the husband’s name solely and the husband shall indemnify the wife and keep the wife indemnified as to any claim howsoever arising in relation to that debt.
Simultaneously with the husband’s compliance with Order 1 above, the Applicant wife shall do all acts and things necessary to:
(a)Transfer to the Respondent Husband all of her right, title and interest…
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- KADER & KADER [2016] FCCA 2684
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- [2016] FCCA 2684
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CaseChat Overview and Summary
The court was tasked with determining the specific orders for the transfer of property interests, the discharge of mortgages, and the payment of a sum of money from the husband to the wife. Crucially, the court also had to establish the consequences and procedures should either party fail to comply with the stipulated orders within the prescribed timeframe, including provisions for the sale of properties and the disbursement of sale proceeds.
The court's reasoning led to a comprehensive set of orders designed to finalise the financial relationship between the parties, in accordance with section 81 of the *Family Law Act 1975*. These orders mandated the husband to pay a sum of $121,472 to the wife, which included a property adjustment and costs, and to transfer his interest in Property E to the wife. Simultaneously, the wife was to transfer her interest in Property B to the husband. Both parties were required to refinance and discharge existing mortgages on the respective properties, with provisions for indemnification. In the event of non-compliance by either party within 35 days of the reissued orders (7 November 2016), specific mechanisms were put in place for the sale of Property B or Property E by private treaty, or by public auction if necessary, with detailed procedures for the distribution of sale proceeds. The court also appointed a Registrar to execute documents if a party refused to do so, and each party was to retain their personal property and assets held in their sole name.
Orders
Orders of the court
1.
Within thirty-five (35) days of the date of these Orders, the Respondent husband shall:
(a) Pay to the wife a sum of $121,472 (comprising a payment by way of property adjustment of $110,722 together with costs to be paid pursuant to these Orders in the sum of $10,750); and
(b) Do all acts and things necessary to transfer to the Applicant wife all of his right, title and interest in the property known as, Property E being the whole of the land contained in Folio Identifier (omitted) (hereinafter referred to as “the Property E property”); and
(c) Refinance and discharge the mortgage secured against the property known as Property B, being the whole of the land contained in Folio Identifier (omitted) (hereinafter referred to as “the Property B property”) so that any mortgage encumbering that property stands in the husband’s name solely and the husband shall indemnify the wife and keep the wife indemnified as to any claim howsoever arising in relation to that debt.
2.
Simultaneously with the husband’s compliance with Order 1 above, the Applicant wife shall do all acts and things necessary to:
(a) Transfer to the Respondent Husband all of her right, title and interest in the Property B property; and
(b) Refinance and discharge the mortgage secured against the Property E property, so that any mortgage encumbering the property stands in the wife’s name solely and the wife shall indemnify the husband and keep the husband indemnified as to any claim howsoever arising in relation to that debt.
3.
In the event that the husband should fail to comply with any of his obligations pursuant to Order 1 hereof within thirty-five (35) days from the date of these Orders, then each of the parties shall then forthwith do all things and sign all documents necessary to cause the Property B property to be listed for sale and sold by private treaty at the earliest possible date and at a price to be agreed upon between the parties and failing such agreement, at a price to be determined by the President of the Real Institute of New South Wales (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:
(a) Discharge of the mortgage encumbering that property;
(b) Payment of agent’s commission, advertising expenses and legal expenses of the sales;
(c) Payment of costs incurred (if any) in relation to the determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee;
(d) The balance then to be divided:
(i) In payment to the wife in the sum of $121,472 together with interest calculated upon that sum from the date 35 days from the date of these Orders until the date of settlement of the sale and to be calculated at the rate prescribed by the Federal Circuit Court Rules 2001;
(ii) The balance to the Respondent husband.
4.
In the event that the wife should fail to comply with any of her obligations pursuant to Order 2 hereof within thirty-five (35) days from the date of these Orders, then each of the parties shall then forthwith do all things and sign all documents necessary to cause the Property E property to be listed for sale and sold by private treaty at the earliest possible date and at a price to be agreed upon between the parties and failing such agreement at a price to be determined by the President of the Real Institute of New South Wales (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:
(a) Discharge of the mortgage encumbering that property;
(b) Payment of agent’s commission, advertising expenses and legal expenses of the sales;
(c) Payment of costs incurred (if any) in relation to the determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee;
(d) In payment of the balance to the wife.
5.
That in the event that either the Property E or Property B properties are to be sold pursuant to Orders 3 and 4 of these Orders and the property to be sold has not sold by private treaty within a period of three (3) months from the date that the property is first listed for sale, then the parties shall forthwith and thereafter do all acts and things necessary, including executing all documents necessary, to cause the properties to be sold by a public auction at the earliest possible date at a reserve price to be agreed upon between the parties, and failing such agreement at a reserve price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee and to disburse the proceeds of the sale in accordance with Order 3 or 4 as applicable.
6.
Each of the parties shall forthwith, do all things, sign all documents and give all consents, authorities and instructions as may be necessary, to transfer to the wife any interest that the parties hold, jointly and severely, or individually in the mortgage offset account with the (omitted) Bank, BSB number: (omitted) Account Number: (omitted).
7.
Save for the Orders above and pursuant to Section 78 of the Family Law Act 1975, each party shall respectively retain all interests in and entitlement to:
(a) All personal property now in his/her respective possession or control;
(b) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;
(c) All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
8.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, then a Registrar of the Federal Circuit Court of Australia shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
9.
That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to this Order in the time periods prescribed.
10.
These Orders are made having regard to the provisions of section 81 of the Family Law Act 1975 with a view to determining for all time the financial relationship between them and avoiding further proceedings between them.
11.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
12.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
13.
The husband shall pay as a contribution to the costs of the wife, the sum of $10,750 and such costs to be paid within two months of the date hereof and at the same time as settlement funds of $110,722 to be paid above (and being the total payment of $121,472 provided by Order 1(a) hereof).
14.
The above costs represent a charge on the husbands interest in real estate and further:
(a) Provided costs are paid within 2 months of today’s date, interest shall not accrue;
(b) If costs are not paid within 2 months of today’s date, the wife shall be entitled to pursue payment thereof by suit in a Court of competent jurisdiction.
15.
Vacate the return date of the Application for Divorce filed 3 March 2016 (namely, 11:00am, 27 April 2016) and make that Application returnable before me today.
THE COURT NOTES THAT:
16.
Whilst these Orders provide for payment within 35 days of 23 March 2016, these Orders have been redrafted and reissued pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 and thus the time for compliance by each party shall be calculated as 35 days from the date of reissue of the Orders, namely 7 November 2016.
Background
Background to the litigation
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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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