Kerin & Kerin

[2007] FamCA 177

FAMILY COURT OF AUSTRALIA

KERIN & KERIN [2007] FamCA 177

FAMILY LAW - PROPERTY ORDERS - S.79(2) JUST AND EQUITABLE

Family Law Act 1975 (Cth)

APPLICANT: MR KERIN

RESPONDENT: MRS KERIN

FILE NUMBER: MLF 2857 of 2005

DATE DELIVERED: 9 FEBRUARY 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 9 FEBRUARY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR MELILLI

SOLICITOR FOR THE APPLICANT: WILSONS LAWYERS

COUNSEL FOR THE RESPONDENT: MR ROYSTON

SOLICITOR FOR THE RESPONDENT: KENNEDY WISEWOULDS

Orders

1. THAT the wife pay to the husband within sixty (60) days the sum of $211,371 (“the payment”).

2. THAT contemporaneously with the payment:

   2.1.the wife do all such acts and things and sign all such documents as may required to transfer to the husband at the expense of the husband all of her right, title and interest in the property situate and known as a, being the whole of the land more particularly described in Certificate of Title Volume … Folio … ;

   2.2.the husband do all such acts and things and sign all such documents as may required to transfer to the wife at the expense of the wife all of his right, title and interest in the property situate and known as W, being the whole of the land more particularly described in Certificate of Title Volume … Folio … ;

   2.3.the husband do all such acts and things and sign all such documents as may required to transfer to the wife at the expense of the wife all of his right, title and interest in the property situate and known as S, being the whole of the land more particularly described in Certificate of Title Volume … Folio … ;

   2.4.the wife do all such acts and things and sign all such documents as may required to transfer to the husband at the expense of the husband all of her right, title and interest in the jointly owned C and T Shares;

   2.5.the husband discharge mortgage registered number … to National Australia Bank Limited encumbering the Title to the property at W and indemnify the wife against all payments pursuant to the aforesaid mortgage; 

   2.6.the wife do all such acts and things and sign all such documents as may be required to withdraw Caveat registered number … at her expense.

3. THAT unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Orders:

   3.1.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;

   3.2.money standing to the credit of the parties in any bank account are to become the property of the party in whose name the account is registered;

   3.3.each party retain and the other relinquish any interest in any superannuation benefits belonging to or earned by the other;

   3.4.insurance policies remain the sole property of the owner named thereon;

   3.5.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;

   3.6.any joint tenancy of the parties in any real or personal estate be expressly severed.

4. THAT in the event that the whole of the payment has not been made by the date then the wife sign all documents and do all things necessary to transfer to the husband the real property at S to be held on trust for sale (“the sale”) and the said real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied as follows:

   4.1.first, to pay all costs, commissions and expenses of the said trust transfer and the sale;

   4.2.secondly, to discharge any encumbrance affecting the said real property;

   4.3.thirdly, so much of the payment as is then outstanding together with interest thereon at the rate of 10.00 per centum per annum adjusted monthly from the date to the husband;

   4.4.fourthly, the balance to the wife.

5. THAT otherwise all extant applications be dismissed and the proceedings removed from the list of cases awaiting hearing.

6. THAT the ex tempore reasons for judgment in relation to parenting orders delivered on 8 February 2007 and in relation to property orders delivered on 9 February 2007 be transcribed and placed on the Court file and a copy be made available to the parties.

7. THAT the Subpoena Clerk, Melbourne Registry, Family Court of Australia return to Y School the documents subpoenaed to Court.

   IT IS CERTIFIED

8. 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.

IT IS NOTED

A.THAT the parties intend these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them. 

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2857 of 2005

MR KERIN

Applicant

And

MRS KERIN

Respondent

REASONS FOR JUDGMENT

1. The matter of Kerin has been before the court over several days and yesterday I delivered extempore reasons for judgment on the child and parenting issues.  There then remained outstanding the property and financial issues, which have now resolved.  I have been presented with minutes of consent orders negotiated between the parties and through their respective counsel and solicitors.

2. I have in the earlier extempore reasons touched upon the background to this marriage and I will not repeat those preliminary issues.  The valuation issue that occupied the time and attention of the parties was the current market value of the former matrimonial home in which the wife resides at W.  A single expert initially valued that property at $700,000.  Close to the hearing date the objections of the husband to that valuation resulted in an independent valuer being engaged by him at his expense and that professional valued the property at $820,000.  There therefore was $120,000 difference in value of a suburban home by two purported experts.  I did not make a formal order permitting the introduction of further evidence but reserved that question pending the outcome of discussions. 

3. The valuers then spent the better part of a day and a half negotiating between themselves and/or arguing for their cause.  At the end of the day there was no agreement , with each of the valuers, as I was informed, stringently maintaining their valuation and their integrity as to the process adopted.  That is almost an intolerable circumstance and the difference in valuation is somewhat mind‑boggling, given that it is more than a nominal difference of opinion and actual valuation.  In any event, do doubt with the good guidance of their legal advisers, the parties have shown a remarkable ability to compromise, on what I regard as a very pragmatic but sensible basis, so that the valuation is $760,000.  I, as invited, proceed on that basis. 

4. Both parties filed, through their legal practitioners, a statement of assets and liabilities.  There was otherwise limited dispute.  The valuation of shares was updated.  The opening approach of the parties, as highlighted in their documents filed with the court, was adjusted by both counsel.  Ultimately, there is agreement that the assets and investments of the marriage, save for superannuation, are to be apportioned 60 per cent to the wife, 40 per cent to the husband, but with superannuation equally apportioned. 

5. The effect of that is that the wife must pay within 60 days $211,371 to the husband.  That is a very precise sum and no doubt it has been the subject of much out‑of‑court discussion.  Indeed I cannot help but observe that that is the third figure included in paragraph 1 of the orders, the other two having been deleted and initialled as the negotiations fine‑tuned to the very dollar that payment.

6. In the context of this case and particularly understanding the substantial pool of assets available to the parties, the various properties to be retained by each of them and the apportionment of debt, with the husband retaining the National Australia Bank mortgage debt and he having the greater superannuation - delayed in its entitlement, as it will be, because of his age, being 39 years - I regard this settlement as just and equitable. 

7. The property orders as produced to the court are quite straightforward in their structure, with each of the parties to take the identified properties and liabilities, subject to the required payment.  As to questions of enforcement, there is a provision by way of security of the property at S and interest in default payable at an agreed rate of 109 per cent per annum, adjusted monthly.  Hopefully, that interest requirements will not be enforced., to the extent that the wife will pay the whole of the required sum on time. 

8. The obligation of the court is to make or to sanction an order that is just and equitable pursuant to section 79(2) of the Family Law Act 1975. In this case I am wholly aware of all of the relevant facts. I have read the affidavits carefully. I have heard submissions and delivered a judgment in relation to the child J and parental issues. Otherwise, I am fully conversant with the valuations, contributions and section 75(2) factors as were presented in the material. I regard this order as proper. I formally declare it is just and equitable within the provisions of the Act and I will pronounce these orders on property and financial matters to complement the earlier child and parenting orders already made.

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

………………………………………………………..
Associate: 
Date: 13 March 2007

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