FAMILY COURT OF AUSTRALIA
Koch & Kest [2021] FamCA 408
File number(s): SYC 8089 of 2018 Judgment of: GILL J Date of judgment: 21 June 2021 Catchwords: FAMILY LAW – PROPERTY – de facto relationship – property adjustment – Kennon adjustment – contributions of wife made more arduous by family violence – adjustment for post separation contributions – spousal maintenance. Legislation: Family Law Act 1975 (Cth) ss 90SF, 90SM Cases cited: Benson & Drury (2020) FLC 93-998
Bevan & Bevan (2013) FLC 93-545
Chorn & Hopkins (2004) FLC 93-204
Jabour & Jabour (2019) FLC 93-898
Keating & Keating (2019) FLC 93-894
Kennon & Kennon (1997) FLC 92-757
Omacini & Omacini (2005) FLC 93-218
Number of paragraphs: 172 Date of last submission/s: 8 September 2020 Date of hearing: 7–8 September 2020 Place: Canberra Counsel for the Applicant: Mr Rosic Solicitor for the Applicant: Diana Perla & Associates Counsel for the Respondent: Mr Brown Solicitor for the Respondent: Browns the Family Lawyers ORDERS
SYC 8089 of 2018 BETWEEN: MS KOCH
ApplicantAND: MR KEST
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
21 JUNE 2021
THE COURT ORDERS THAT:
1.Within 42 days of the date of these Orders, the husband pay $264,000 to the wife.
2.Simultaneously with Order 1, the husband do all acts and things and sign all documents to transfer to the wife all of his right, title and interest in the property at ... M Street, Suburb G, New South Wales (Folio Identifier ...) (“the Suburb G property”);
3.Simultaneously with Order 1 and 2 above, the wife discharge the K Bank mortgage BSB ...18 and K Bank Line of Credit BSB ... 29 being registered mortgage ... (“the K Bank mortgage”).
4.The husband shall be declared the sole owner to the exclusion of the wife of his interest in L Street Suburb H New South Wales (Folio Identifier ...) ("the Suburb H property").
5.The husband shall indemnify the wife and keep indemnified in relation to any loan secured by way of mortgage over the Suburb H property.
6.The husband shall be declared the sole owner, to the exclusion of the wife, of Business C ACN: ... and shall indemnify the wife and keep her indemnified in relation to any liability of or relating to Business C.
7.The husband indemnify the wife and keep her indemnified in relation to any Loan Accounts in her name to the company, Business C or any liability in relation to her having been an officer or employee of Business C.
8.Within 42 days of the date of these Orders, the parties do all acts and things to close their joint savings bank accounts, with the wife to retain the balance of funds in each of those accounts.
9.The husband pay to the wife spousal maintenance in the sum of $800 per week commencing seven days from the making of these Orders and every week thereafter until 1 September 2023.
10.That in the event that the husband…
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CaseChat Overview and Summary
The court was required to determine the appropriate property adjustment between the parties, considering factors such as contributions, the impact of family violence on the applicant's contributions, and post-separation contributions. Additionally, the court needed to assess the claim for spousal maintenance.
Gill J ordered a significant property settlement, requiring the husband to pay $264,000 to the wife and transfer his interest in the Suburb G property to her, while the wife was to discharge associated mortgages. The husband was declared the sole owner of the Suburb H property and Business C, with provisions for indemnifying the wife against related liabilities. The court also ordered the husband to pay the wife spousal maintenance of $800 per week until September 2023. In the event of non-compliance with the primary payment order, the court outlined a detailed mechanism for the sale of the Suburb H property and, if necessary, Business C, to satisfy the wife's entitlements, with specific disbursement priorities. The court also imposed restraints on the husband's dealings with certain assets pending compliance.
Orders
Orders of the court
SYC 8089 of 2018
BETWEEN:
MS KOCH
Applicant
AND:
MR KEST
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
21 JUNE 2021
THE COURT ORDERS THAT:
1. Within 42 days of the date of these Orders, the husband pay $264,000 to the wife.
2. Simultaneously with Order 1, the husband do all acts and things and sign all documents to transfer to the wife all of his right, title and interest in the property at ... M Street, Suburb G, New South Wales (Folio Identifier ...) (“the Suburb G property”);
3. Simultaneously with Order 1 and 2 above, the wife discharge the K Bank mortgage BSB ...18 and K Bank Line of Credit BSB ... 29 being registered mortgage ... (“the K Bank mortgage”).
4. The husband shall be declared the sole owner to the exclusion of the wife of his interest in L Street Suburb H New South Wales (Folio Identifier ...) ("the Suburb H property").
5. The husband shall indemnify the wife and keep indemnified in relation to any loan secured by way of mortgage over the Suburb H property.
6. The husband shall be declared the sole owner, to the exclusion of the wife, of Business C ACN: ... and shall indemnify the wife and keep her indemnified in relation to any liability of or relating to Business C.
7. The husband indemnify the wife and keep her indemnified in relation to any Loan Accounts in her name to the company, Business C or any liability in relation to her having been an officer or employee of Business C.
8. Within 42 days of the date of these Orders, the parties do all acts and things to close their joint savings bank accounts, with the wife to retain the balance of funds in each of those accounts.
9. The husband pay to the wife spousal maintenance in the sum of $800 per week commencing seven days from the making of these Orders and every week thereafter until 1 September 2023.
10. That in the event that the husband fails to comply with Order 1 then:
(a) The husband immediately vacate the Suburb H property; and
(b) The wife be appointed as his Trustee to sell the Suburb H property including but not limited to signing all documents necessary on his behalf, with the wife to have sole control of all aspects of the sale, including appointing the conveyancing solicitor, real estate agent, marketing the property and sale price but to keep the husband’s solicitor informed of all steps taken.
(c) The proceeds from the sale of the Suburb H property be disbursed as follows:
(i) Payment of legal, selling and marketing costs related to the sale;
(ii) Payment of Strata Levies, Council and Water rates outstanding at the time of settlement;
(iii) Payment of the J Bank Home Loan BSB ...70 (“J Bank Loan”);
(iv) Payment of $264,000 to the wife plus interest in accordance with the Family Law Rules from 42 days after the date of these Orders to date of payments.
(v) Payment of any remaining balance to the husband.
11. In the event that the total net proceeds received from the sale of the Suburb H property, in Order 10.3.4. above, is less than $264,000, then:
(a) The wife be appointed as the husband’s Trustee to sell the company, Business C, including but not limited to signing all documents necessary on his behalf, with the wife to have sole control of all aspects of the sale, including appointing the solicitor, selling agent, marketing the business and sale price but to keep the husband’s solicitor informed of all steps taken;
(b) The proceeds from the sale of Business C be disbursed as follows:
(i) Payment of legal, selling and marketing costs related to the sale of business;
(ii) Payment to the wife of the amount, being the difference between $264,000 plus interest in accordance with the Family to date of payments, less the amount received by the wife in accordance with Order 10.3.4 above; and
(iii) Any remaining balance to be paid to the husband.
12. Pending the husband complying with these Orders, the husband be restrained:
(a) from drawing down on the J Bank Loan (the Suburb H loan) unless to effect compliance with these orders to make the payment in order 1 to the wife;
(b) from drawing down on the loans associated with the Suburb G property; and
(c) from dealing in any way with his shareholding in Business C unless to effect compliance with these orders to make the payment in order 1 to the wife.
13. Otherwise each party be solely entitled to the exclusion of the other, to all other property currently registered in his/her name, either individually or jointly with another person, or in his/her current possession or control at the date of these Orders, including but not limited to real property, bank accounts, businesses, money, superannuation and leave entitlements, shares, jewellery and personal effects, presently in his/her possession.
14. In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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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Legal Principle Established
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