KURIAKIN & KURIAKIN - [2010] FMCAfam 40

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KURIAKIN & KURIAKIN

[2010] FMCAfam 40

FAMILY LAW – Property settlement – 21 year marriage – equal division of property.

Family Law Act 1975, ss.75, 79

Hickey & Hickey (2003) FLC 93-143
Mallett v Mallett (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
C & C (2005) FLC 93-220
In the marriage of Pearce (1999) FLC 92-844
In the Marriage of Ferraro (1993) FLC 92-335
Rosati & Rosati (1998) FLC 92-804

Applicant:

MS KURIAKIN

Respondent:

MR KURIAKIN

File Number:

SYC 5463 of 2008

Judgment of:

Wilson FM

Hearing date:

15 October 2009

Date of Last Submission:

23 November 2009

Delivered at:

Brisbane

Delivered on:

22 January 2010

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

Marsdens Law Group

Counsel for the Respondent:

Mr Givney

Solicitors for the Respondent:

Macelbing Mednis & associates

ORDERS

The property of the parties, found to be $1,832,145.04 be adjusted such that each party receives 50% thereof.
To give effect to order 1 hereof:
(a)The husband shall retain:
(i)The property at [M];
(ii)The property at [S];
(iii)His share of the property situate at [T];
(iv)Any bank accounts in his sole name;
(v)Any shares registered in his sole name;
(vi)Any insurance policies in his name;
(vii)The Volkswagen and Chevrolet motor vehicles and the motor boat.
(b)The wife shall retain:
(i)Any bank accounts in her sole name;
(ii)Any shares registered in her sole name;
(iii)The Holden Calais motor vehicle;
(iv)The entitlement to recover monies lent to her brother Mr S;
(v)Her superannuation.
(c)The wife shall be entitled to the entire balance of any joint bank account in the parties’ names as at the date of final hearing and the husband shall execute such documentation as may be necessary to give effect to this order, and shall cease to be entitled to operate such account thereafter;
(d)The property at [V] shall be transferred into the sole ownership of the wife, and to that effect:
(i)The husband shall execute a transfer in registrable form of his interest in the property to the wife, to be provided to the wife, or her nominee, in exchange for the discharge or release of mortgage referred to in sub-paragraph (ii) hereof;
(ii)The wife shall cause the mortgage secured against the property in respect of a joint loan to the husband and the wife to be discharged, and shall indemnify the husband against any liability in respect of such loan on and from the date of transfer;
(iii)At the date of transfer into the wife’s sole name, the wife shall pay to the husband one half of any payments made by him in respect of the property or any loan in respect thereof from the date of final hearing to the date of transfer;
(iv)If the mortgage presently secured against the property is not discharged within 42 days of these orders, or such other time as may be agreed between the parties, the [V] property shall be sold and the proceeds of sale of…

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.

Continue reading KURIAKIN & KURIAKIN

Details

AGLC: KURIAKIN & KURIAKIN [2010] FMCAfam 40
Case: [2010] FMCAfam 40
Decision Date: 22 January 2010

CaseChat Overview and Summary

In the case of KURIAKIAN & KURIAKIAN, the court was tasked with determining the division of property and other financial matters between the husband and wife following their separation. The husband and wife had amassed a total property value of $1,832,145.04, and the court was required to decide how this property should be equitably divided between the parties.

The legal issues before the court included the division of jointly owned properties, the allocation of specific assets to each party, and the calculation and distribution of superannuation benefits. The court also had to address the payment of capital gains tax and the settlement of debts between the parties. The court considered the contributions of each party to the accumulation of their assets, their future financial needs, and the principles of fairness and justice in its decision-making.

The court ruled that the property should be divided equally between the husband and wife, with each party receiving 50% of the total value. Specific properties and assets were allocated to each party based on factors such as their individual contributions and needs. The court also ordered the sale of certain properties and directed the payment of capital gains tax and other debts. Superannuation benefits were divided in accordance with the Family Law Act, with the wife receiving a specific entitlement from the husband's superannuation fund.

The court's final orders provided detailed instructions for the division of property, the sale of specific assets, and the payment of taxes and debts. The orders ensured that both parties were aware of their respective obligations and rights, and provided mechanisms for enforcement in the event of non-compliance.

Orders

Orders of the court

The property of the parties, found to be $1,832,145.04 be adjusted such that each party receives 50% thereof.

To give effect to order 1 hereof:

(a) The husband shall retain:

(i) The property at [M];

(ii) The property at [S];

(iii) His share of the property situate at [T];

(iv) Any bank accounts in his sole name;

(v) Any shares registered in his sole name;

(vi) Any insurance policies in his name;

(vii) The Volkswagen and Chevrolet motor vehicles and the motor boat.

(b) The wife shall retain:

(i) Any bank accounts in her sole name;

(ii) Any shares registered in her sole name;

(iii) The Holden Calais motor vehicle;

(iv) The entitlement to recover monies lent to her brother Mr S;

(v) Her superannuation.

(c) The wife shall be entitled to the entire balance of any joint bank account in the parties’ names as at the date of final hearing and the husband shall execute such documentation as may be necessary to give effect to this order, and shall cease to be entitled to operate such account thereafter;

(d) The property at [V] shall be transferred into the sole ownership of the wife, and to that effect:

(i) The husband shall execute a transfer in registrable form of his interest in the property to the wife, to be provided to the wife, or her nominee, in exchange for the discharge or release of mortgage referred to in sub-paragraph (ii) hereof;

(ii) The wife shall cause the mortgage secured against the property in respect of a joint loan to the husband and the wife to be discharged, and shall indemnify the husband against any liability in respect of such loan on and from the date of transfer;

(iii) At the date of transfer into the wife’s sole name, the wife shall pay to the husband one half of any payments made by him in respect of the property or any loan in respect thereof from the date of final hearing to the date of transfer;

(iv) If the mortgage presently secured against the property is not discharged within 42 days of these orders, or such other time as may be agreed between the parties, the [V] property shall be sold and the proceeds of sale of such property shall be distributed:

1. First, in payment of the costs of sale, including agent’s commission;

2. Secondly, in discharge of any encumbrance secured and registered against the property;

3. Thirdly, in payment to the husband of one half of any payments made by him in respect of the property or any loan in respect thereof from the date of final hearing to the date of sale;

4. Fourthly, by paying the balance to the wife, who shall remain liable for any capital gains tax payable in respect of the sale.

(e) The property at [I] shall be sold at a price agreed to by the parties, being not less than $290,000 in the first instance, and failing agreement as determined by the President of the Real Estate Institute of New South Wales, and the proceeds of sale of such property shall be distributed:

(i) First, in payment of the costs of sale, including agent’s commission;

(ii) Secondly, in discharge of any encumbrance secured and registered against the property;

(iii) Thirdly, by paying the sum of $22,449 to the trust account of the wife’s solicitors on account of capital gains tax to be assessed on the realisation of the said property;

(iv) Fourthly, by paying the balance to the wife.

(f) The husband shall pay to the wife, within 14 days of the date of settlement of the sale of the [I] property one half of the costs of sale, including agent’s commission;

(g) Provided that if the [I] property sells at a price exceeding $290,000, the wife shall pay to the husband one half of any additional sale proceeds;

(h) If the assessment of capital gains tax payable by both parties exceeds the combined amount of $22,449, each party shall be responsible for paying 50% of such excess notwithstanding in whose name the assessment is issued;

(i) if the assessment of capital gains tax payable by both parties is less than the combined amount of $22,449, the difference between the combined assessments and the sum of $22,449 shall be shared equally by the parties;

(j) The husband shall pay to the wife the sum of $136,018.00, such payment to be made not less than seven (7) days prior to the settlement of the sale of the [I] property;

(k) If the husband fails to pay all or any part of the sum specified in order 2(j) hereof, then the husband shall forthwith list for sale the property at [M] at a price agreed between the parties, or failing agreement as determined by the President of the Real Estate Institute of New South Wales, and upon such sale, the wife shall be paid the sum of $136,018 together with interest on that sum at the rate of 10% per annum from the date such sum was required to be paid pursuant to order 2(j) hereof, until the date of such payment.

(l) That:

(i) The Court allocates, as required by s.90MT(4) of Family Law Act, a base amount of $73,640 to the applicant wife out of the respondent husband’s interest in the [I] Superannuation member number [omitted] (“the Fund”).

(ii) In accordance with s.90MT(1)(a) of Family Law Act, the Court:

1. creates an entitlement on the part of the applicant wife to be paid the amount calculated in accordance with Part 6 of Family Law (Superannuation) Regulations 2001; and

2. 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 this order.

(ii) Whenever the Trustee of the Fund makes a splittable payment out of the respondent husband’s interest in the Fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 2(l)(i) of this order in accordance with the requirements of Family Law Act and Family Law (Superannuation) Regulations 2001.

(iii) This order has effect from the operative time and the operative time is the date of five business days after the sealed orders are served on the Trustee.

(m) In the event that the wife or the husband shall refuse or neglect to execute any deed or instrument necessary to give effect to these orders, the Registrar or a Deputy Registrar of the Court shall be empowered pursuant to s.106A of Family Law Act 1975 to execute such deed or instrument in the name of the wife or the husband to do all acts and things necessary to give validity and operation to the said deed or instrument provided that such Registrar or Deputy Registrar shall be satisfied upon affidavit evidence of the party alleging the refusal or neglect that the other party is in breach of these orders.

That both the husband and wife shall do all acts and things and give all consents and execute any documents in relation to give effect to these orders made herein.

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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