Mamounas and Kavalieros

[2007] FamCA 543

FAMILY COURT OF AUSTRALIA

MAMOUNAS & KAVALIEROS [2007] FamCA 543

FAMILY LAW - PROPERTY – Proceeding in Defended List – Very short union with differential contributions favouring the wife – Settlement reached and consent orders made.

Family Law Act 1975 (as amended)

APPLICANT: Mr Mamounas

RESPONDENT: Ms Kavalieros

FILE NUMBER: MLF 1795 of 2005

DATE DELIVERED: 15 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 15 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ham

SOLICITOR FOR THE APPLICANT: Michael L Maplestone

COUNSEL FOR THE RESPONDENT: Mr G Combes

SOLICITOR FOR THE RESPONDENT: Agricola Wunderlich & Associates

Orders

1. That the wife pay to the solicitor for the husband Michael L Maplestone the sum of $50,000 (“the sum”) as follows:-

   (a)$14,000 on or before the 25^th May 2007 (“the first payment”)

   (b)$36,000 on or before 16^th June 2007 (“the second payment”).

2. That contemporaneously with the payment of the second payment –

   (A)The wife refinance the mortgage at the wife’s expense currently registered upon the property located at B (“the property”);

   (B)     The Husband –

   (i)remove any caveats he may have lodged over the property and any other real property registered in the name of the wife at his expense;

   (ii)sign all documents and do all things necessary to transfer to the wife all his interest in the property at the expense of the wife.

3. That the wife pay and indemnify the husband and keep him indemnified in relation to all outgoings of whatsoever nature or kind (including but not limited to mortgage payments) in relation to the property.

4. That in the event that the sum has not been paid by 16^th June 2007 then so much of the first payment and the second payment as remains unpaid shall bear interest at the rate of 10.5% per annum from the due date until payment.

5. That in the event that the sum together with interest thereon has not been paid in full by the 16^th July 2007 then the property be forthwith sold altogether out of Court and after payment of any encumbrance and the cost of sale the balance be paid:-

   (a)to the husband the balance of the sum together with interest thereon;

   (b)the balance (if any) to the wife

6. That notwithstanding Order 5 hereof in the event of default of payment of the sum together with interest thereon there be liberty to the husband to seek the sale or transfer of any real property registered in the wife’s name in satisfaction of such payment.

7. That the wife forthwith sign all documents and do all things necessary to resign any office, transfer any shareholding as directed by the husband and transfer to the husband any interest in right or claim in the company C Pty Ltd (“the company”) at the husband’s expense.

8. That the husband indemnify the wife and keep her indemnified in relation to:-

   (i)all debts, liabilities and obligations of the company (including but not limited to any taxation that may be assessed upon her for income received or deemed to have been received by her from the company);

   (ii)Agreement Number … with M Pty Ltd (“the lease agreement”);

   (iii)any money owing to his mother by the husband and/or wife including (but not limited to the debt of $18,850 relating to the purchase of the property.

9. That the wife indemnify the husband and keep him indemnified in relation to:-

   (i)any money owing to her mother by the husband and/or wife;

   (ii)all outgoings relating to any real property in her name.

10. That the first payment be retained by the solicitor for the husband Michael L Maplestone and only be used towards satisfaction of the money owing pursuant to the lease agreement and none of such money be released to the husband until the debt owing in relation to the lease agreement has been fully satisfied.

11. That pending the payment or completion of the sale:-

    (a)the wife have the sole right to occupy the property and that during such right of occupation the wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the property as they fall due;

    (b)the parties hold their respective interests in the property upon trust pursuant to these orders; and

    (c)neither party encumber the property without the consent in writing of the other party save to make the payment.

12. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

    (a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the wife.

    (b)each party forego any claims they have to any superannuation benefits belonging to or earned by the other.

    (c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

    (d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

13. That all extant applications of the husband and the wife be otherwise dismissed.

CERTIFICATION

1. Certify for Counsel.

IT IS DIRECTED

1. That all issues be removed from the Pending Cases List.

2. That the Minutes of Consent Orders remain on the Court file.

3. That the solicitor for the husband file three clean copies of these Orders within seven days.

THE COURT NOTES

That the parties intend these orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1795  of 205

Mr Mamounas

Applicant

And

Ms Kavalieros

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of defended cases.  It is a property matter.  Mr Ham appears for the applicant husband and Mr Combes for the respondent wife.

2. There was a dispute between the parties as to the dates on which they did or did not commence cohabitation, but I think it matters not, for in the result, taking a broad perspective of the time they spent together, it was a reasonably short union.  The husband is 33 years of age and the wife is 30 years of age.  The husband, for example, claimed that cohabitation commenced in about July 2002, whereas it was, on the wife's version of events, in February 2003.  Whatever the position, they did marry in May 2004, having become engaged in June 2003.

3. Their union fell upon quite unhappy times, certainly on the evidence of the wife, and they separated on 5 October 2004 since which they have lived continuously separate and apart.

4. I have read the helpful affidavits of both parties and also considered the very helpful Case Summary documents filed by each of them.  At the commencement of the proceedings it was indicated to me by Mr Ham, and from which Mr Combes drew no dissent, that being a property matter, “by definition” was capable of sensible and dignified negotiation.  I agree with that entirely.

5. This is what the parties have achieved this day through their own efforts, and I congratulate both the husband and the wife on having the dignity and the commonsense in achieving this compromise.  At the commencement of the proceedings this morning I did mention to each of the parties the desirability of a commercial adjustment under the shadow of the relevant provisions of the Family Law Act 1975 being achieved on a rational and economic basis so as to enable them to move forward in life.  This, they have done.

6. The net pool of assets, omitting superannuation, has been summarized to me by counsel and the settlement overall in favour of the husband represents approximately 30 per cent of those assets.  Mr Ham said that each of the parties came to that position through separate methodology.  I might say myself, it is a percentage differential that I had in mind as being appropriate.  It could have fallen either way, given the circumstances outlined in the court documents, but in my view is a settlement which is just, proper and equitable in the whole of the circumstances.

7. There are obligations on judges of this court to be satisfied that orders are just and equitable, notwithstanding that they are made by consent.  I am satisfied that these orders sit seamlessly within the provisions of the Act. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  7 June 2007.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MAMOUNAS & KAVALIEROS