Messafi and Messafi

[2017] FamCA 356

FAMILY COURT OF AUSTRALIA

MESSAFI & MESSAFI [2017] FamCA 356

FAMILY LAW – PROPERTY – final orders - just and equitable

FAMILY LAW – SPOUSAL MAINTENANCE – final orders – that the husband pay the wife a sum attributed to lump sum spousal maintenance – that the husband continue to pay the wife weekly spousal maintenance

Family Law Act 1975 (Cth)ss 75(2), 77A

APPLICANT: Ms Messafi

RESPONDENT: Mr Messafi

FILE NUMBER: MLC 8728 of 2015

DATE DELIVERED: 3 May 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 3 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kanarev

SOLICITOR FOR THE APPLICANT: Agent Law

COUNSEL FOR THE RESPONDENT: Mr Indovino

SOLICITOR FOR THE RESPONDENT: MDM Lawyers

Orders

1. That all previous orders be discharged.

2. That pursuant to section 77A of the Family Law Act (1975), the sum of $100,000 of the sum to be paid to the Wife pursuant to order 3 hereof be attributable to lump sum spousal maintenance.

3. The Husband make payment of the sum of $1,400,000 (“the payment”) to the Wife as follows:

   (a)the sum of $800,000 to the Wife within 90 days of the date of these orders (“the first payment”);

   (b)      the sum of $100,000 within 120 days of the date of these orders;

   (c)      the sum of the sum of $100,000 within 150 days of the date of these 

   orders;

   (d)      the sum of $100,000 within 180 days of the date of these orders;

   (e)      the sum of $100,000 within 210 days of the date of these orders;

   (f)       the sum of $100,000 within 240 days of the date of these orders; and

   (g)       the balance of $100,000 within 270 days of the date of these orders.

4. That until the Husband makes first payment to the Wife, the Husband will continue to pay the Wife the sum of $300 per week by way of spousal maintenance.

5. That from 120 days of the date of these orders, the Husband is to pay interest on the balance of the payment outstanding at the rate of 10 per cent per annum adjusted and paid monthly until the final payment is made.

6. That in the event that the whole of the first payment has not been made, the property known as B Street, Suburb C in the State of Victoria (“the Suburb C property”) and the property known as D Street, Suburb E (“the Suburb E property”) be forthwith sold and upon completion of the same, the proceeds of the sale of the properties be applied:

   (a)firstly, to pay all costs, commissions and expenses of the sales;

   (b)secondly, to discharge the Suburb C property mortgage number … to the Australia and New Zealand Banking Group Ltd, the Suburb E property mortgage number … to the Australia and New Zealand Banking Group Ltd and any other encumbrances; 

   (c)thirdly, so much of the payment as is then outstanding together with interest thereon at the rate of 10 per cent per annum adjusted monthly from the date to the Wife; and

   (d)fourthly, the balance to the Husband.

7. That pending the payment or completion of the sale of the Suburb C property and the Suburb E property (“the said properties”):

   (a)the Husband have the sole right to occupy the said properties and during such right of occupation, the Husband pay all instalments pursuant to the any mortgages encumbering the said properties and all rates and taxes and like apportionable outgoings when and as they fall due;

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

   (c)neither party encumber the said properties without the consent in writing of the other party.

8. In the event that there is a shortfall in the payment to the Wife from the proceeds of the sale of the Suburb C property and the Suburb E property the business known as F Pty Ltd is to be sold to make up the difference of the payment and that there be liberty to apply.

9. That contemporaneously with the first payment:

   (a)the Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her right, title and interest in the real property situate at and known as B Street, Suburb C in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … ("the Suburb C property");

   (b)the Husband indemnify the Wife against any liability pursuant to the mortgage and all appropriate rates, taxes and outgoings of or with respect to the Suburb C property of whatsoever nature and kind;

   (c)the Husband discharge the mortgage registered … to the Australia And New Zealand Banking Group Ltd and refinance it into his own name; 

   (d)the Wife, at the expense of the Husband, resign as Director of G Pty Ltd Pty Ltd as trustee for the Messafi Family Trust and transfer her shares to the Husband and the Husband indemnify the Wife in relation to all liabilities and expenses including capital gains tax; and

   (e)the Husband transfer to the Wife, at the expense of the Husband 232,000 AMEX points.

10.That contemporaneously with the final payment:

(a)the Wife sign all such documents as reasonably required at the Husband’s expense to relinquish any right she has in any trust, company or other entities the Wife may have an interest in;

(b)the Wife relinquish any right to loan accounts, distributions or any other entitlements she may have or had an interest in; and

(c)the Wife withdrawal caveat registered on the Suburb E property at her expense.

11.The Husband, as of the date of these orders indemnify the Wife in relation to the Mr Messafi Family trust, H Pty Ltd, the business known as F Pty Ltd, G Pty Ltd and any other entity or trust.

12.That by mutual agreement of date and time, the Husband will make available for collection by the Wife or the Wife’s representative the blue garden pots, the Wife’s wedding dress and the two old studded chairs and the Wife provide to the Husband scanned copies of family photographs, the Husband’s home films and the Husband’s personal photo album.

13.That by 20 July 2017, the Husband will make payment of the Wife’s land tax liabilities in the sum of $771.00.

14.The Husband is responsible for payment of all costs and expenses in relation to the valuations associated with this matter and indemnify the Wife in relation to same.

15.The parties do all things are reasonably required to withdraw the property known as I Street, Suburb J from sale by 7 May 2017 and the Husband is to pay all costs and expenses in relation to same.

16.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) and bank accounts in the possession of such party as at the date of these orders, save and except the items in order 12;

(b)save for order 9 (e) each party retain their respective frequent flyer points and any card reward points;

(c)monies standing to the credit  of the parties in any joint bank account be equally shared between the parties and closed;

(d)each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;

(e)insurance policies remain the sole property of the owner named therein;

(f)each party be solely liable for and indemnify the other against any liability encumbering any item of property, or business interest or any other asset to which that party is entitled pursuant to these orders;

(g)each party retain as their property any shares in their name;

(h)the husband be entitled to the K Town timeshare and the Wife shall sign all such documentation as necessary to effect same; and

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

1. The applications of the Husband and of the Wife filed herein be otherwise dismissed.

IT IS DIRECTED

1. That all property issues be removed from the Pending Cases List maintained by the Court.

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

THE COURT NOTES

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

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Messafi & Messafi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8728  of 2015

Ms Messafi

Applicant

And

Mr Messafi

Respondent

REASONS FOR JUDGMENT

1. In the matter of Messafi, having heard submissions by counsel appearing for the parties today in this Judicial Duty List, I am asked to make final orders that will resolve all outstanding issues before the Court. The parties have negotiated throughout the course of today. They have presented to the Court a minute of order that will finalise both property and spousal maintenance applications before the court. Having heard the submissions and having had the opportunity of considering the material filed to date, I am satisfied that the proposed orders are just and equitable. They are orders that provide and recognise the many and varied contributions made by both husband and wife through the course of their very long relationship. They also take into account relevant matters pursuant to the provisions of s 75(2) of the Family Law Act 1975 (Cth).

2. Accordingly, I make orders in the terms of that minute.  The minute will be marked with the letter A.  It will remain on the Court file, and I direct that the applicant’s solicitor engross and file the orders at Court within seven days

I certify that the preceding two (s) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 3 May 2017.

Associate: 

Date:  3 May 2017