Kamyar and Kiani and Anor

[2007] FamCA 794

FAMILY COURT OF AUSTRALIA

KAMYAR & KIANI AND ANOR [2007] FamCA 794

FAMILY LAW - PROPERTY SETTLEMENT – Consent property orders in Long Defended List - Issues adjusted by parties following a Judicial Settlement Conference

APPLICANT: MS KAMYAR

RESPONDENT: MR KIANI

INTERVENOR: MR P KIANI

FILE NUMBER: MLF 3060 of 2005

DATE DELIVERED: 18 June 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 18 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nicholson

SOLICITOR FOR THE APPLICANT: Serafini & Hill

COUNSEL FOR THE RESPONDENT: Mr Salamanca

SOLICITOR FOR THE RESPONDENT: Meerkin & Apel

COUNSEL FOR THE INTERVENOR: Ms Swann

SOLICITOR FOR THE INTERVENOR: Eales & Mackenzie

Orders

1. That the wife pay to the husband’s solicitors on behalf of the husband the sum of $120,000 (“the Payment”) on or before the 18^th day of August 2007 (“the date”).

2. That contemporaneously with the payment:

   (a)the husband do all such acts and things and sign all such documents as may be required to transfer to the wife at the expense of the wife all of his right, title and interest in the real property situate at and known as C.

   (b)The wife indemnify the husband against all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind and the wife cause the Westpac Mortgage encumbering the real property to be discharged or have the name of the husband removed as mortgagor and the husband be relieved of any covenants with respect to such mortgage.

3. That in the event that the whole of the payment has not been made by the date the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

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

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

   (c)thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly from the date to the husband.

   (d)Fourthly the balance to the wife.

4. That pending the payment or completion of the sale:

   (a)the wife have the sole right to occupy the real property and that during such right of occupation the wife pay all rates and taxes and like apportionable outgoings of the real property as they fall due;

   (b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and

   (c)neither party encumber the real property without the consent in writing of the other party.

5. That the husband be liable for and indemnify the wife against all payments in respect of any money owing or allegedly owing to the husband’s brother.

6. That the husband and or the Intervenor do all such acts and things and sign all such documents as may be required to cause the Caveat registered over the real property to be removed, at the expenses of the Intervenor, or the husband upon payment.

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

   (a)each party be solely entitled to the exclusion of the other to all other property (including superannuation entitlements, choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels) in the real property being deemed to be in the possession of the wife save for the husband’s clothing and personal effects which he shall collect within 28 days of the date hereto.

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

   (c)Insurance policies remain the sole property of the owner named thereon.

   (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 estate is hereby expressly severed.

8. That in the event that a representative of the Ministry of Science or the Ministry of Culture and Higher Education and/or the Iranian Government make a claim and obtain Judgment against the husband in an Australian Government Competent Jurisdiction with respect of any liability owing by him regarding the scholarship and ancillary expenses received by him ( as referred to in the husband’s affidavit filed herein) or the said institutions make a claim and obtain payment after instituting proceedings against Dr A and by obtaining judgment:-

   (i)the husband shall provide all relevant information and particulars of any claim and/ or liability to the wife, as soon as practicable upon receiving notices of same

   (ii)the husband shall provide all documentary evidence regarding the particulars of any claim or judgment as soon as practicable upon receiving notice of same.

   (iii)upon receiving notice of both of the above the wife shall pay and be responsible for 60% and such liability and the husband 40% of such liability against the husband.

9. Liberty to the husband the wife to apply in respect of the provisions of paragraph 8 hereof.

10.That the gold and other jewellery referred to in the photograph annexed hereto and marked “A” be divided equally by mutual agreement between the husband and the wife and be retained by them respectively on behalf of the said children currently residing with them (that is S with the husband and R with the wife) and given to each of the children upon their obtaining 18 years of age

11.That the parties appoint a jeweller to divide the jewellery in the event that they are unable to agree upon the division of the said jewellery.

12.That the applications of the husband and the wife respectively filed on the 21^st day of December 2004 and on the 10^th day of November 2004 and the Intervenor dated 9^th March 2005 be otherwise dismissed.

13.Certify for Counsel/solicitor acting for Counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3060  of 2005

Ms Kamyar

Applicant

And

Mr Kiani

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Long Defended List.  The proceedings commenced life in the Federal Magistrates Court in November 2004 and subsequently found its way into the Family Court of Australia.  Given the length of the anticipated trial, it was transferred to the Long Defended List of cases and came under my management.  The competing applications essentially comprise a property case, with the welfare issues having been satisfactorily resolved between the parties. 

2. A short background may be stated as follows.  The husband was born in Iran in April 1952.  He is 55 years of age.  The wife was also born in Iran in January 1962.  She is 45 years of age.  The parties met and married in Tehran on 14 August 1986.  Their first child S was born in March 1991.  The parties then came to Australia in 1992 where they have since remained.  Their second child, R was born in October 1994.  Following unhappy differences between them, the parties separated on 30 November 2004, since which date they have lived continuously separate and apart. 

3. The husband achieved substantial educational assistance in Australia, sponsored by the Iranian government, working in scientific research.  He was awarded a doctoral thesis at an Australian University.  Both parties have continued to reside in Australia and are now Australian citizens, not having returned to Iran following the severe political unrest in that country.  Australia is their home and where they intend to permanently reside.

4. The parties’ assets comprise the former matrimonial home valued by a single expert at $400,000, the husband's superannuation of some $216,000 and the wife's savings accumulated by her since separation amounting to some $34,000.  There is otherwise furniture and personal effects retained by each of them. 

5. The effect of the proposed consent orders is that the wife remains in the former matrimonial home.  She conducts a small business from the premises and is clearly able to support herself.  The husband, with his superior educational status, works with the Australian Public Service and receives a substantial income.  He has a secured future.

6. One of the difficulties in this case concerned moneys allegedly advanced by the husband's brother, Mr P Kiani, who resides in Europe.  When this matter came under my case management it was apparent that a number of proposed witnesses resided overseas, both in Europe and in Iran.  Given issues of credibility, which were quite obvious, I earlier refused an application for giving evidence by electronic means.  That seemed to me to be appropriate in the circumstances.

7. The parties, very much to their credit, decided through their solicitors and at my invitation to undertake a Judicial Settlement Conference.  The cost of litigation to them thus far has been quite extensive, totalling in round figures some $86,000 overall.  The husband has received professional service accounts to the extent of some $42,000 and the wife has been billed for $30,000.  The intervenor, who is the husband's brother, has paid $14,000 in legal fees.  The parties have been greatly assisted by Mr Nicholson who appears for the wife, Mr Salamanca who appears for the husband and Ms Swann for the Intervenor.

8. As I said, one of the principal questions in this matter concerned moneys allegedly owed to the Intervenor in excess of $200,000.  The cost of litigation in this court and a lengthy trial, which would not be heard before the end of this current year, would have an estimated impost of $70,000, or thereabouts.  It thus became a commercially‑unviable exercise.  With that consideration in mind, the parties have exercised great dignity and good commonsense in achieving a resolution.  They have been well served by their professional advisors.

9. There is no ready answer to a matter like this other than to attempt a practical and dignified resolution within the shadow of the mandates of the Family Law Act (1975) itself.  This they have done.  Each of the parties have cut their losses and made concessions.  They will now move forward from this moment on.  I congratulate the parties in having the understanding and the steel in coming to this sensible arrangement. 

10. The orders will enable the wife to continue to reside in the matrimonial home with the youngest child of the marriage, who suffers some difficulties.  The eldest child lives with her father but spends considerable time with her mother.  It was impressive that both parties in court this day, during the course of the Judicial Settlement Conference, made it clear that they both loved their children, that both children loved them and that they were making these arrangements themselves.  That again brings great credit to them both as individuals and as parents.

11. The consent orders provide that the wife retain the home and pay or cause to be paid to the husband's brother the sum of $120,000.  She will retain the home subject to an encumbrance to that amount, and her savings but which, I daresay which will be eroded by legal fees.  The husband will retain his substantial superannuation benefits.  Overall, it seems to reflect an adjustment of some 60‑40 per cent, which is the range of order that would be made by the court had the parties gone on to long and painful litigation. 

12. There are obligations on judges of this court to be satisfied that orders are just and equitable, notwithstanding that they are made by consent.  I am familiar with the whole of the factual matrix in these proceedings.  I have read the Case Outline Documents.  I have read all the trial affidavits of each of the parties and I have read the affidavits filed on their behalf.  But, significantly, I have had the advantage of a Judicial Settlement Conference, which commenced at 9.30 am this morning.  The parties negotiated all day with great dignity and have come to this resolution. 

13. I am satisfied that the orders now agreed upon are just and equitable within the discrete and particular circumstances of this case.  I mark the Minute of Proposed Orders Exhibit "A" and note the removal of the proceedings from the Active Pending Cases List.  I wish the parties the best for the future.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  8 August 2007.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as KAMYAR & KIANI