FAMILY COURT OF AUSTRALIA
| LENARDI & LENARDI | [2011] FamCA 266 |
| FAMILY LAW - PROPERTY - Superannuation FAMILY LAW - PROPERTY - Settlement in relation to marriage FAMILY LAW - PROPERTY SETTLEMENT - Contributions - Property acquired before marriage - Just and equitable - Future needs - Financial agreements FAMILY LAW - SPOUSAL MAINTENANCE - Factors considered FAMILY LAW - CHILD SUPPORT |
| Chorn & Hopkins (2004) FLC 93-204 Townsend & Townsend (1995) FLC 92-569 Farnell (1996) FLC 92-601 Gartner [2000] FmCA 793 Pierce & Pierce (1999) FLC 92-844 Tomasetti (2000) FLC 93-823 Black & Kelner (1992) FLC 92-287 Weir & Weir (1993) FLC 92-238 Beven (1995) FLC 92-600 |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPLICANT: | Mr Lenardi |
| RESPONDENT: | Ms Lenardi |
| FILE NUMBER: | PAC | 1472 | of | 2007 |
| DATE DELIVERED: | 11 April 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Collier J |
| HEARING DATE: | 4 - 7 May 2009 2 July 2009 |
| LAST WRITTEN SUBMISSIONS: | 28 July 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton |
| SOLICITOR FOR THE APPLICANT: | McPhee Kelshaw |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Family Law Matters |
Orders
That within two months of the date of these Orders, the wife pay to the husband the sum of $517,190.
That the wife shall do all things and sign all documents, including payment of all fees, to ensure that the husband is discharged from any liability to the ANZ Bank in respect of loan accounts numbered … and the mortgages secured over the properties hereinafter referred to.
That upon compliance by the wife with the preceding paragraphs, the husband shall provide to the wife appropriate documents in registrable form necessary to transfer to the wife his right, title and interest in the following properties:
(a) … O Street, Suburb L;
(b) … F Street , Suburb G; and
(c) … E Street, Suburb B.
That in the event the wife fails to comply with orders (1) and (2) above, the parties shall forthwith do all things and sign all documents necessary to sell by private treaty at a price agreed between the parties the following properties:
(a) … O Street, Suburb L; and
(b) … F Street, Suburb G.
That upon completion of sale of those properties the monies received shall be applied as follows:
(a) In any necessary adjustment of rates;
(b) In payment of all agent’s fees and commissions properly incurred in such sale (including, if appropriate, auction expenses);
(c) In payment of all legal costs and disbursements properly incurred in such sale;
(d) In payment to the ANZ Bank in the amount secured over that property by way or mortgage or other encumbrance;
(e) In payment of land tax presently outstanding in an amount of approximately $32,887;
(f) To the husband of a sum equivalent to 95 percent of the pool of monies created by the sale of those properties;
(g) In payment to the wife of the balance then remaining.
That the wife shall simultaneous…
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- AGLC
- Lenardi and Lenardi [2011] FamCA 266
- Case
- [2011] FamCA 266
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific financial entitlements and obligations of each party, including the payment of a sum of money, the transfer of property interests, and the discharge of bank liabilities. Further issues included the method of sale for certain properties if agreement could not be reached, the management of rental income pending sale, and the handling of funds held in trust for children. The court also addressed applications for child support departure and spousal maintenance.
Collier J applied principles of property settlement and financial orders, aiming for a final division of assets and liabilities. The orders provided a detailed framework for the transfer of property, the payment of a significant sum from the wife to the husband, and the discharge of ANZ Bank loans secured over the properties. In the event of non-compliance with the initial payment and discharge orders, the court stipulated a process for the sale of specified properties by private treaty or, if necessary, public auction, with detailed provisions for the application of sale proceeds. The court also made specific orders regarding the management of jointly held shares, the return of personal documents and photographs, and the ownership of remaining personal property. Applications for departure from child support assessment and spousal maintenance were dismissed.
Orders
Orders of the court
1.
That within two months of the date of these Orders, the wife pay to the husband the sum of $517,190.
2.
That the wife shall do all things and sign all documents, including payment of all fees, to ensure that the husband is discharged from any liability to the ANZ Bank in respect of loan accounts numbered … and the mortgages secured over the properties hereinafter referred to.
3.
That upon compliance by the wife with the preceding paragraphs, the husband shall provide to the wife appropriate documents in registrable form necessary to transfer to the wife his right, title and interest in the following properties:
(a) … O Street, Suburb L;
(b) … F Street , Suburb G; and
(c) … E Street, Suburb B.
4.
That in the event the wife fails to comply with orders (1) and (2) above, the parties shall forthwith do all things and sign all documents necessary to sell by private treaty at a price agreed between the parties the following properties:
(a) … O Street, Suburb L; and
(b) … F Street, Suburb G.
5.
That upon completion of sale of those properties the monies received shall be applied as follows:
(a) In any necessary adjustment of rates;
(b) In payment of all agent’s fees and commissions properly incurred in such sale (including, if appropriate, auction expenses);
(c) In payment of all legal costs and disbursements properly incurred in such sale;
(d) In payment to the ANZ Bank in the amount secured over that property by way or mortgage or other encumbrance;
(e) In payment of land tax presently outstanding in an amount of approximately $32,887;
(f) To the husband of a sum equivalent to 95 percent of the pool of monies created by the sale of those properties;
(g) In payment to the wife of the balance then remaining.
6.
That the wife shall simultaneous with payment to her in accordance with paragraph (5) above, do all things and execute all documents, including payment of all fees, to ensure the husband is discharged from any remaining liability to the ANZ Bank in respect of any loan, mortgage, or encumbrance whatsoever, and particularly any loans secured over the property at … E Street, Suburb B.
7.
That upon payment to the husband of the amount required to be paid to him pursuant to order (1) above, or in the alternative order (5) above, the husband shall do all things and sign all documents necessary to transfer to the wife his interest in jointly held ING shares.
8.
That for the purpose of implementing the sales referred to in the preceding paragraphs the following shall apply:
(a) The legal work associated with the sales of the properties shall be conducted by a solicitor or licensed conveyancer agreed upon in writing by the parties provided that if the parties are unable to agree in writing and such disagreement subsists for a period of not less than 7 days, the legal work shall be conducted by the husband’s solicitors;
(b) The real estate agent conducting the sale of the properties shall be as agreed in writing between the parties provided that if the parties are unable to agree in writing and such disagreement subsists for a period of not less than 7 days, the parties shall do all things necessary and each pay half of all fees necessary to have the identity of the real estate agent determined by the President for the time being of the NSW Chapter of the Australian Institute of Valuers.
(c) The listing price and sale price shall be as agreed in writing between the parties provided that if the parties are unable to agree in writing and such disagreement subsists for a period of not less than 7 days, the parties shall do all things necessary and each pay half of all fees necessary to have the price in dispute determined by the President for the time being of the NSW Chapter of the Australian Institute of Valuers.
9.
That in the event that contracts for sale have not been exchanged (if necessary to implement these orders) within four months of the date of these Orders, the parties shall thereupon sign all documents and do all things necessary to ensure that the properties or either of them as remains not the subject of a binding exchange for contracts at the date specified, to list the unsold property for sale by public auction with an auctioneer agreed upon between the parties at a reserve price agreed upon by them.
10.
That upon completion of the sale of either property by public auction, the proceeds of sale then arrived at shall be dealt with in accordance with paragraphs (1) and/or (5) of these Orders.
11.
For the purpose of implementing any auction pursuant to the preceding paragraph the following shall apply:
(a) The auctioneer conducting the auction of the property(ies) shall be as agreed in writing between the parties provided that if the parties are unable to agree in writing and such disagreement subsists for a period of not less than 7 days, the parties shall do all things necessary and each pay half of all fees necessary to have the identity of the auctioneer determined by the President for the time being of the NSW Chapter of the Australian Institute of Valuers.
(b) The auction reserve price and auction sale price shall be as agreed in writing between the parties provided that if the parties are unable to agree in writing and such disagreement subsists for a period of not less than 7 days, the parties shall do all things necessary and each pay half of all fees necessary to have the price in dispute determined by the President for the time being of the NSW Chapter of the Australian Institute of Valuers.
12.
The reserve price for any auction shall be as agreed between the parties. The actual sale price shall be agreed between the parties. In the event that the parties cannot agree upon both reserve and a sale price, that reserve and sale price shall be as nominated by the auctioneer on the date of the auction.
13.
Pending sale of the properties referred to in the preceding clauses the parties shall do all things and sign all documents necessary to apply the net rental income received toward the reduction of mortgages secured over the properties and the payment of council and water rates and building insurance for the properties and the wife shall pay any deficit between the expenses associated with the properties and the net rental income.
14.
That in relation to the funds currently held in ING Account 6 in trust for the child B and in ING Account 5 in trust for the child J, the parties shall do all things and sign all documents to do the following:
(a) The name of the account holder shall be changed to the parties joint names as trustees for the children/child;
(b) The account details shall be changed to specify that monies can only be withdrawn from the accounts with the signature of both parties.
15.
That within 1 month of the date of these orders that the wife deliver to the office of the husband’s solicitors the following items:
(a) The husband’s Passport;
(b) The husband’s certificates including:
(i) Certificates relating to Martial Art 1 including grading certificates;
(ii) Certificates for work related courses and training.
(c) All documents in the husband’s sole name or addressed solely to him including personal correspondence, tax records, bank records and credit card records.
16.
That within seven days of the date of these Orders, the husband make available to the wife original or negative photographs in his possession relating to the parties and the children or any of them, together with any videos or DVDs in relation to the children or the parties.
17.
That the wife shall at her own expense, and within twenty-eight days from the date of receipt, make such copies as she wishes of the material provided to her and shall, no later than twenty-eight days of receipt by her, return that material to the husband.
18.
That subject to the preceding, that the husband is the sole owner in law and in equity as between himself and the wife of all items of personal property, financial assets and financial resources currently in his power, possession or control other than as specifically dealt with elsewhere in these orders.
19.
Subject to the preceding, that the wife is the sole owner in law and in equity as between herself and the husband of all items of personal property, financial assets and financial resources currently in her power, possession or control other than as specifically dealt with elsewhere in these orders.
20.
That the wife’s application for a departure from administrative assessment of child support be and is hereby dismissed.
21.
That the husband’s application for spousal maintenance be and is hereby dismissed.
22.
That liberty be granted to either party to restore the matter to the list in relation to the implementation of these Orders upon giving seven days’ notice to the other party and the Court.
23.
That all outstanding applications not specifically referred to and cross applications be and are hereby dismissed.
24.
That all issues be removed from the Active Pending Cases List.
25.
That all material produced on subpoena be returned not before fifty-six days from the date of these Orders.
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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