KURIAKIN & KURIAKIN - [2012] FMCAfam 382

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KURIAKIN & KURIAKIN

[2012] FMCAfam 382

FAMILY LAW – Property adjustment – exclusion of inherited assets from pool for division – availability of such assets to the parties – thereafter equal contributions – small s.75 (2) adjustment.

Family Law Act 1975, ss.75, 79

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143, (2003) 30 FamLR 355
In the marriage of Lee Steere (1985) FLC 91-626
In the marriage of Ferrarro (1993) FLC 92-335
In the marriage of Clauson (1995) FLC 92-595
Russell and Russell (1999) FLC 92-877
Teal & Teal [2010] FamCAFC 120

Applicant:

MS KURIAKIN

Respondent:

MR KURIAKIN

File Number:

SYC 5463 of 2008

Judgment of:

Foster FM

Hearing date:

12 March 2012

Date of Last Submission:

22 March 2012

Delivered at:

Sydney

Delivered on:

2 May 2012

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Reeve

Counsel for the Respondent:

Mr Heazlewood

Solicitors for the Respondent:

ORDERS

That within 42 days of the date of the orders the respondent husband sign all documents and do all things necessary to transfer to the applicant wife all his right title and interest in the property situated at and known as [V] (hereinafter referred to as the [V] property) and that simultaneously with the transfer provided for in this order the applicant wife shall:
(a)discharge the present mortgage encumbering the [V] property and
(b)thereafter indemnify and keep indemnified the respondent husband in relation to the present mortgage encumbering the [V] property
That the husband and wife forthwith do all things necessary and sign all necessary documents to cause to be paid to the wife the whole of the nett proceeds of sale of the [I] property presently held on trust on behalf of the parties.
That the respondent husband pays to the applicant wife the sum of $252,882 within 42 days from the date of these orders and in default of such payment by the due date the wife have liberty to apply as to enforcement.
That the Court allocates, as required by section 90MT(4) of the Family Law Act 1975, a base amount of $106,285 to the applicant wife out of the respondent husband’s interest in the [I] Fund member number [omitted] (“the fund”) and in accordance with Section 90MT(1)(a) of the Family Law Act 1975 the court creates an entitlement on the part of the applicant wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and makes a corresponding reduction in the entitlement to the respondent husband or such other person to whom a splittable payment may be made would have had in the fund but for these orders and whenever the Trustee of the fund makes a splittable payment out of the respondent husband’s interest in the fund the Trustees shall do all acts and things and sign all such documents as may be necessary to pay the entitlement created by this order in accordance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: KURIAKIN & KURIAKIN [2012] FMCAfam 382
Case: [2012] FMCAfam 382
Decision Date: 2 May 2012

CaseChat Overview and Summary

The Court heard a case between the applicant, Mrs K, and the respondent, Mr K, regarding the division of their assets following their divorce. The dispute centred on the equitable distribution of their property, including real estate, personal effects, and a superannuation fund. The matter was heard in the Family Court of Australia.

The primary legal issues before the Court were the equitable division of the parties' property and the allocation of the respondent's superannuation fund. The Court had to determine the fair division of the property, including the transfer of the respondent's interest in a property known as the [V] property to the applicant. The Court also needed to allocate a portion of the respondent's superannuation fund to the applicant, in accordance with the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

The Court found that the parties had effectively divided their other property, and therefore no further division was necessary. Regarding the [V] property, the Court ordered the respondent to sign all necessary documents to transfer his interest in the property to the applicant within 42 days. The applicant was also required to discharge the existing mortgage on the property and indemnify the respondent in relation to it. The Court further ordered that the respondent pay the applicant $252,882 within the same timeframe. Additionally, the Court allocated a base amount of $106,285 from the respondent's superannuation fund to the applicant, with the trustees to make splittable payments in accordance with the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

The Court made several orders, including the transfer of the respondent's interest in the [V] property to the applicant, the payment of $252,882 by the respondent to the applicant, and the allocation of a portion of the respondent's superannuation fund to the applicant. The Court also declared that the parties had already divided their other property and personal effects between themselves.

Orders

Orders of the court

That within 42 days of the date of the orders the respondent husband sign all documents and do all things necessary to transfer to the applicant wife all his right title and interest in the property situated at and known as [V] (hereinafter referred to as the [V] property) and that simultaneously with the transfer provided for in this order the applicant wife shall:

(a) discharge the present mortgage encumbering the [V] property and

(b) thereafter indemnify and keep indemnified the respondent husband in relation to the present mortgage encumbering the [V] property

That the husband and wife forthwith do all things necessary and sign all necessary documents to cause to be paid to the wife the whole of the nett proceeds of sale of the [I] property presently held on trust on behalf of the parties.

That the respondent husband pays to the applicant wife the sum of $252,882 within 42 days from the date of these orders and in default of such payment by the due date the wife have liberty to apply as to enforcement.

That the Court allocates, as required by section 90MT(4) of the Family Law Act 1975, a base amount of $106,285 to the applicant wife out of the respondent husband’s interest in the [I] Fund member number [omitted] (“the fund”) and in accordance with Section 90MT(1)(a) of the Family Law Act 1975 the court creates an entitlement on the part of the applicant wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and makes a corresponding reduction in the entitlement to the respondent husband or such other person to whom a splittable payment may be made would have had in the fund but for these orders and whenever the Trustee of the fund makes a splittable payment out of the respondent husband’s interest in the fund the Trustees shall do all acts and things and sign all such documents as may be necessary to pay the entitlement created by this order in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 and these orders have effect from the operative time and the operative time is four business days after the day on which the trustee is served with a signed and sealed copy of these orders.

The Court otherwise declares that the parties have divided between themselves in specie all their other property including real property, their furniture and furnishings, their jewellery and other personal effects, chattels, cash on hand and including their cash at bank and that they have no right title or interest in or to any such items presently in the possession of or under the control of the other and for the purposes of this declaration the contents of the home at [M] are deemed to be in the possession of the husband, the contents of the [V] property are deemed to be in the possession of the wife and the contents of the [S] property are deemed to be in the possession of the husband.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court accordingly makes orders as set out at the commencement of these reasons for judgment. _______________________________________________________________I certify that the preceding fifty-eight paragraphs are a true copy of the reasons for judgment of Foster FM.

Ratio Decidendi

Legal Principle Established

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