FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kornet & Struthers [2024] FedCFamC1F 309
File number(s): MLC 13073 of 2021 Judgment of: MCNAB J Date of judgment: 10 May 2024 Catchwords: FAMILY LAW – PROPERTY - Division of property following a long marriage of around 20 years – Where parties pooled their financial resources – Where the Court finds that the $505,000 received by the applicant from the second and third respondents prior to the trial by way of a property settlement ought not to be treated as a discrete property pool and quarantined off as a contribution by the applicant – When the Court finds the contributions of the parties to the parties’ assets to be equal – Where the Court takes into account when determining the property pool that the husband is not in good health – Where the Court considered the expected inheritance of the wife under s 75(2)(o) in its final determination. Legislation: Family Law Act 1975 (Cth) ss 75, 79, 114Q(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), rr 10.13, 10.14
Cases cited: DeAngelis & De Angelis (2003) FLC 93-133
Dickons & Dickons [2012] FamCAFC 154
Dovgan & Dovgan [2021] FamCA 306
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-14
Jabour & Jabour [2019] FamCAFC 78
Perrin & Perrin (No 2) [2018] FamCAFC 122
Division: Division 1 First Instance Number of paragraphs: 65 Date of last submission/s: 29 December 2023 Date of hearing: 9 – 12 October 2023 Place: Melbourne Counsel for the Applicant: Mr Salamanca Solicitor for the Applicant: Gold Stone Family Lawyers Counsel for the Respondent: Ms Goldthorp Solicitor for the Respondent: Kennedy Guy ORDERS
MLC 13073 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KORNET
ApplicantAND: MS STRUTHERS
Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
10 MAY 2024
THE COURT ORDERS THAT:
Payment and the Suburb B property
1.Within 90 days ("the date") the wife pay to the husband $209,120.79 ("the payment").
2.Contemporaneously with the payment:
(a)the husband remove any caveat he has registered against the property at C Street, Suburb B ("the Suburb B property");
(b)the wife retain to the exclusion of the husband the Suburb B property.
3.In the event that the wife fails to make the payment to the husband by the date, the parties forthwith do all such acts and things to place the Suburb B property on the market for sale ("the default sale").
4.For the purposes of the default sale (if applicable):
(a)the wife propose three real estate agents and conveyancers to the husband in writing within seven days of the date and the husband select one from the list to act as the real estate agent and conveyancer;
(b)the husband be permitted to obtain information from the real estate agent and conveyancer in relation to the sale, including but not limited to obtaining information about offers made by prospective purchasers;
(c)the reserve…
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- AGLC
- Kornet & Struthers [2024] FedCFamC1F 309
- Case
- [2024] FedCFamC1F 309
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court included determining the appropriate division of the property pool, taking into account the health of Mr Kornet and the potential inheritance Ms Struthers would receive. The Court's reasoning involved a comprehensive analysis of the contributions and assets of both parties. Given Mr Kornet's health issues, the Court made specific provisions to ensure his welfare was considered in the property settlement. Additionally, Ms Struthers' expected inheritance was factored into the final determination, as required by section 75(2)(o) of the Family Law Act 1975 (Cth).
The Court ordered that Ms Struthers pay $209,120.79 to Mr Kornet within 90 days, with specific instructions regarding the Suburb B property, transfer of shareholdings, and motor vehicles. The Court also outlined procedures for a default sale of the Suburb B property if the payment was not made, and detailed the division of other assets and liabilities. The Court further directed that the wife be solely responsible for certain debts, while the husband would indemnify the wife for others. The final orders included provisions for the transfer of assets and the severance of joint tenancies.
Orders
Orders of the court
MLC 13073 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR KORNET
Applicant
AND:
MS STRUTHERS
Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
10 MAY 2024
THE COURT ORDERS THAT:
Payment and the Suburb B property
1. Within 90 days ("the date") the wife pay to the husband $209,120.79 ("the payment").
2. Contemporaneously with the payment:
(a) the husband remove any caveat he has registered against the property at C Street, Suburb B ("the Suburb B property");
(b) the wife retain to the exclusion of the husband the Suburb B property.
3. In the event that the wife fails to make the payment to the husband by the date, the parties forthwith do all such acts and things to place the Suburb B property on the market for sale ("the default sale").
4. For the purposes of the default sale (if applicable):
(a) the wife propose three real estate agents and conveyancers to the husband in writing within seven days of the date and the husband select one from the list to act as the real estate agent and conveyancer;
(b) the husband be permitted to obtain information from the real estate agent and conveyancer in relation to the sale, including but not limited to obtaining information about offers made by prospective purchasers;
(c) the reserve price, sale price and method of sale be agreed between the parties and failing agreement as recommended by the real estate agent.
5. On the completion of the default sale (if applicable), the proceeds of the sale be paid as follows:
(a) first, to pay the costs and expenses associated with the sale including real estate agent and conveyancing fees;
(b) second, to pay to the husband so much of the payment as is outstanding;
(a) third, to pay the balance to the wife.
6. Contemporaneously with the completion of the default sale of the Suburb B property (if applicable) the husband remove any caveat he has registered against the Suburb B property.
D Pty Ltd
7. Within 14 days of the date of these Orders, the wife sign all such documents required to transfer her shareholding in D Pty Ltd to the husband at the husband’s cost and on receipt of such signed documents the husband forthwith register the change of shareholding with ASIC.
Motor Vehicles
8. The wife retain to the exclusion of the husband her Motor Vehicle 1.
9. Within 14 days of the date of these Orders, the wife sign all such documents required to transfer Motor Vehicle 2 in the husband’s possession to the husband and on receipt of such signed documents the husband forthwith register the transfer with Vic Roads at his cost.
Money Held in Trust by the Husband’s Solicitors
10. The husband retain to the exclusion of the wife the money held in trust by his solicitors.
Commercial vehicle
11. The husband retain to the exclusion of the wife the commercial vehicle.
Debt
12. The wife be solely responsible for and indemnify the husband in relation to the debt related to her Motor Vehicle 1 and the debt owing to her mother.
13. The husband be solely liable for and indemnify the wife in relation to any tax debt in his name and any credit card debt in his name.
Other
14. Save for as otherwise provided for in these Orders:
(a) the parties each be entitled to the sole legal and beneficial ownership of all items of property (including choses in action) in the possession or control of each of them respectively;
(b) the parties be solely liable for and indemnify the other in relation to any debt in their respective names and any debt attached to any item of property to which they are entitled pursuant to these Orders;
(c) the husband and the wife each retain to the exclusion of the other any superannuation benefits belonging to or earned by them;
(d) any joint tenancy of the husband and the wife in any real or personal estate is hereby expressly severed.
NOTATION
A. The Court has been advised that on the making of Order 9 herein, the husband’s solicitor will pay $14,979.77 to the Child Support Agency from the money held on trust by their office.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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