Netopoulos and Kitsannis

[2008] FamCA 121

FAMILY COURT OF AUSTRALIA

NETOPOULIS & KITSANNIS [2008] FamCA 121

FAMILY LAW – PROPERTY SETTLEMENT – Contested proceedings brought by Executor of the Estate of the wife (her parents). Issues of substantial financial contributions by the husband’s parents and of the s 75(2) prospective adjustment. Matter adjusted and consent orders made.

Family Law Act 1975 (Cth) (as amended)

APPLICANTS: Mr and Mrs Netopoulis

RESPONDENT: Mr Kitsannis

FILE NUMBER: MLF 1307 of 2005

DATE DELIVERED: 13 February 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 13 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Ms Byrnes

SOLICITOR FOR THE APPLICANTS: Maitland-Smith & Associates

COUNSEL FOR THE RESPONDENT: Mr McConchie

SOLICITOR FOR THE RESPONDENT: F Butera & Co.

Orders

1. That on or before the 18^th day of April 2008 the husband pay to Maitland-Smith & Associates, the solicitors for the maternal grandmother Mrs Netopoulis as the Executrix of the Estate of the late wife Mrs Kitsannis, the sum of $60,000 (“the payment”.)

1. That upon receipt of the said sum of $60,000 and simultaneously therewith the wife by her  Executrix shall:

   (i)sign all documents (including a Transfer of Land tendered by the husband) and do all things necessary to transfer to the husband, at the expense of the husband, all of the interest of the late wife in the property situated at and known as N and being the land in Certificate of Title Volume … Folio … (“the real property”);

   (ii)invest the sum of $52,500.00 on behalf of the beneficiary of the Estate of the late wife in accordance with the terms of her last Will dated the 12^th October 2004 and admitted for Probate on 10^th December 2007 from the Supreme Court of Victoria.

   (iii)inform and keep informed the husband as to the terms of such investments in accordance with her duties as Executrix and Trustee.

   (iv)provide registerable Withdrawals of Caveats and any Titles Office lodging fees (at the expense of the Estate of the late wife) to the husband over any real properties owned by the husband and or his family.

2. That simultaneously with the payment the husband indemnify and keep indemnified the Estate of the late wife with respect to all:

(i)rates, taxes and like outgoings for the real property;

(ii)all mortgage liability with respect to ANZ mortgage number … over the real property  and the husband shall refinance the said loan or in the alternative provide a release to the wife for the mortgage;

(iii)Any monies owing to the husband’s parents or any entities in which they have an interest.

1. 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 real property being deemed to be in the possession of the husband);

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

(c) insurance policies remain the sole property of the owner named thereon;

(d) 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;

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

1. That otherwise all property applications be dismissed.

1. That all parenting issues/applications be removed from the list of cases awaiting hearing save as to a right of reinstatement remaining as to paragraph 9 of the Orders by the Honourable Justice Guest dated 31^st August 2005.

IT IS NOTED that the publication of this judgment under the pseudonym Netopoulos & Kitsannis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1307  of 2005

Mr and Mrs Netopoulos

Applicants

And

Mr Kitsannis

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the general Defended List under my direction.  It is a property matter and Ms Byrnes appears for the Applicant/Executors of the Estate of the late wife, and Mr McConchie appears for the Respondent/Husband.  I have been helpfully provided with an outline to the background to the matter.

2. The wife, at the age of 38 years, tragically died in August 2005.  The husband is 45 years of age.  The parties married in February 2002 and following unhappy differences, separated on 4 October 2004.  There was one child of their union, who was born in April 2003.  She is nearly 5 years of age.  Grant of probate was made in December 2007 and the Executors of the wife's Estate are present this day in court with Ms Byrnes. 

3. I was advised that the assets at the time of separation comprised the former matrimonial home at N, registered in the name of the parties as tenants in common.  It was purchased in about 2001 for approximately $343,000.  As matters now stand, there is an encumbrance by way of mortgage in the sum of $172,000.

4. In the course of her very helpful outline of the background, Ms Byrnes informed me that there were three loans asserted by the husband and which the Executors did not deny.  They comprised loans advanced from the husband's parents for the purchase of the N property in the sum of $70,000, a further $34,300 contribution to the deposit, and some $38,500 in reduction of the mortgage.  The total of those advances was $142,800.

5. At the time of the union of the parties, the wife contributed approximately $7000 by way of savings and the husband contributed approximately $14,000. The contribution issue was quite clear to me, and the problem that brought the matter to court was that the Executors had some difficulty in understanding the operation, effect and ramifications of section 75(2) of the Family Law Act (1975) (as amended).  There appears to have been no problem of contribution pursuant to section 79(4) of the Act, and it is commonsense to take the current value of the property, deduct the mortgage and otherwise the contributions made by the husband's parents to which I have earlier referred.

6. There was another problem outlined by Ms Byrnes concerning the value of the former matrimonial home.  The executors were of the view that it was worth some $800,000.  The husband claimed it was worth about $400,000.

7. A letter from C Real Estate, dated 10 January 2008 was tendered in which the author assessed the value of the property, following inspection, at a range of $465,000 to $510,000.  A mid-point of that assessment will arrive at $487,500 or, rounding off, $490,000.  Thus it was that if one were to deduct, as an arithmetical exercise the mortgage and the contributions by the husband's parents to the acquisition and maintenance of the property in the sum of $142,000, there would remain an equity of approximately $175,000 which, it appears to me, should be the starting point with each of the parties having an arguable entitlement of $87,500 or thereabouts.

8. In discussions with both Ms Byrnes and Mr McConchie, I pointed out that the assessment of value of the property by C Real Estate was undertaken, it would be fair to assume, on the basis of professional responsibility and that a range of value was ascribed to the property.  It seemed to me, for the purpose of the exercise, then, to assume that as fair value and in the result, the parties acted on that basis.

9. The position of the Executors was explained to me by Ms Byrnes as being that there be no adjustment pursuant to the provisions of section 75(2) of the Act. The husband's position was that an earlier offer had been made in the sum of $60,000. It was not a difficult exercise to recognise that the offer was both generous and fair and one that I thoroughly supported in my discussions with Ms Byrnes, all of which took place in the presence of the Executors of the Estate.

10. The matter was then stood down.  The parties negotiated again at arms length and came to an agreement.  I support that agreement which provides for the husband to pay to the Executors of the Estate of the wife the sum of $60,000, which is for the benefit of the child.  They will have the burden and obligation of investing those moneys prudently for her benefit until she achieves the age of majority.

11. There are obligations on judges of this Court to be satisfied that orders are just and equitable, notwithstanding they are made by consent.  Such are the mandates of section 79(2) of the Act itself.  In my view the orders are just and equitable, and I repeat my view that the offer advanced by and on behalf of the husband was a generous and appropriate one.  I congratulate the parties on having the good commonsense and the dignity, together with the resolve, in coming to this arrangement, and I wish them both the best for the future. 

12. The only other issue that was left for some form of discussion was the question of the maternal grandparents' contact or spending time with the child.  I addressed the parties generally on the philosophy and principles underpinning the Family Law Act in its welfare jurisdiction and in particular the provisions of section 60B of the Act.  They are matters for consideration at another time, but I would hope that both sets of grandparents would be able to meet a common point in what appears to be an unfriendly situation, and put aside whatever grievances they may hold and place as paramount the best interests of their grand-daughter.

13. I have considered the Minutes of Proposed Orders which I mark Exhibit “A”.  I make the orders in terms of Exhibit “A” and direct the solicitors for the applicant to engross the orders.  I note removal of the proceedings from the Active Pending Cases List, save for paragraph 9 of the orders that were made by me on 31 August 2005.

14. There is to be added to the orders the following: 

    “It is directed that a transcript of the submission and general discussions this day be made and placed on the court file and that the extempore judgment be transcribed, placed on the court file and made available to the parties”.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  4 March 2008