Platkowski & Platkowski and Anor

[2007] FamCA 1133

FAMILY COURT OF AUSTRALIA

PLATKOWSKI & PLATKOWSKI AND ANOR [2007] FamCA 1133

FAMILY LAW - PROPERTY - Bitterly contested property dispute following a 50 year and longer union - Monies remitted to Macedonia - Modest asset pool - Parties supported by different children within a divided family - Issues resolved on negotiation - Consent orders ultimately made

Family Law Act 1975 (Cth)

APPLICANT: Mrs Platkowski

RESPONDENT: Mr Platkowski

2^ND RESPONDENT: Ms Platkowski

FILE NUMBER: MLF 3238 of 2004

DATE DELIVERED: 4 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 4 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stoikovska

SOLICITOR FOR THE APPLICANT: David Stagg Tonkin & Company

COUNSEL FOR THE RESPONDENT: Ms Piggott

SOLICITOR FOR THE RESPONDENT: Fernandez & Johnson

COUNSEL FOR THE INTERVENOR: Ms Ben-Simon

SOLICITOR FOR THE INTERVENOR: Kenyons

Orders

1. That pursuant to Section 106B(1) of the Family Law Act, the Transfer of Land number … and dated 12^th September, 2002, by which the husband as transferor transferred the former matrimonial home, being the whole of the land more particularly described in Certificate of Title Volume … Folio … ("the real property") to Ms Platkowski be and is hereby set aside.

2. That upon the setting aside of the Transfer in Order 1 and contemporaneously with the payment, the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his right, title and interest in the real property.

3. That the wife pay to the husband the sum of $80,000 ("the payment") within 60 days.

4. That in the event the husband vacates the real property he shall remove and retain for his sole use and benefit the refrigerator, the single bed and lounge suite and all other furniture and chattels in the property shall remain in the sole possession of the wife.

5. That the wife's Form 1 Further Amended Application filed 30^th January, 2007, the husband's Response filed 14^th February, 2007 and the second respondent's Form 1A Response filed 14^th February, 2007 be and are hereby dismissed.

THE COURT NOTES:

That it is the intention of the wife that in the event that the husband wishes to reside with the wife in the real property, he may do so on the following conditions:

(a)     Neither party assault nor harass the other;

(b)The husband contribute to one half of the council and water rates, including all telephone, gas, electricity and reasonable maintenance expenses relating to the property.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3238  of 2004

MRS PLATKOWSKI  

Applicant

And

MR PLATKOWSKI  

Respondent

And

MS PLATKOWSKI
2^nd Respondent

REASONS FOR JUDGMENT

1. This property dispute comes before me in the Standard Track List of defended cases.  A short background is as follows.  The wife was born in March 1924 in Macedonia, as was the husband in November 1925. They married in November 1943, at a time when the wife was some 19 years and the husband 18 years of age.  Their marriage undoubtedly commenced in gruelling circumstances in a Europe that was divided by war, privation and suffering.  Notwithstanding this, it survived.

2. From 1943 until 1970, the parties lived South West Macedonia where they both worked on a farm owned by the husband's family.  I rather suspect their life was a humble one, each contributing to the nurture and the care of their three children.

3. It is the wife's position, as I read from the documents, that the parties separated under one roof in 1997.  The husband's position is that separation occurred in about 2004 when he left the matrimonial home.  However, as a general observation it seems to me that whatever the position, the last several years of their union did have periods of quite severe filial unhappiness between the two of them, perhaps bringing to this country aspects of a culture somewhat alien to our own.

4. The parties first purchased land in South West Macedonia, in about 1965.  In about 1970, they built a little house on the land in which they lived.  It was registered in the husband's name.  Some time well after that it was transferred to their eldest son by the husband.  It is claimed by the wife that the transfer was unbeknownst to her.

5. Their eldest son demolished the house in South West Macedonia in about 1990 and built a larger one.  He also purchased a flat, also in Macedonia using, it is claimed by the wife, moneys remitted by the husband to Macedonia.  The wife claimed a joint entitlement to those monies.

6. The husband emigrated from Macedonia to Australia in 1970.  Their youngest child, Ms Platkowski, who is the second-named respondent in the proceedings, emigrated to Australia the following year, and in 1972 the middle child also travelled to Australia where he married his wife.  It seems to me that the middle child and his wife have both been of considerable comfort and solace to the wife in the proceedings.  The family was divided, with Ms Platkowski directing her support to her father.  In that stressful situation, I have little doubt that there followed considerable tension and disputation. 

7. It was argued that Ms Platkowski and the husband purchased the former matrimonial home and that became an area of great dispute between the parties, as it was later, unbeknownst, it is said by the wife, transferred by the husband to Ms Platkowski.

8. Whilst the husband and Ms Platkowski were in Australia, the wife remained in the house in South West Macedonia and then emigrated to Australia in 1974.  The parties' former matrimonial home was purchased for $18,000 and it was the acquisition of that property, the payment of the deposit, with associated issues such as contribution that underpinned the issue between the parties.  That property was originally registered in the husband's sole name and documents revealed that it was subsequently transferred by him to Ms Platkowski in about September 2002.  As I said, it is claimed that the transaction was unbeknownst to the wife.

9. At the commencement of the trial I did have occasion to address all counsel and the parties as it concerned me that having shared a life together for over half a century they, as octogenarians were locked in litigation.  But has anything of fundamental substance changed?  They had met each other in very straitened circumstances.  They obviously had love and affection each for the other.  They had three children.  The eldest son continues to reside in South West Macedonia, and both the youngest son and Ms Platkowski are now Australian citizens.

10. I can understand the justiciable issues that erupted between the husband and the wife that fed the litigation pathway that brought them to court and which were, to a certain degree, unfortunate.  However, it was those issues that emphatically defined the litigation between them which must have appeared mountainous and irreconcilable as between all of the parties.

11. Whether or not the hours since yesterday have focussed the parties on the reality of their litigation is a matter upon which I can only speculate.  Both the husband and the wife are elderly people.  They have the freedom to travel to their home in South West Macedonia, and I dare say they are very decent folk.  Their daughter, Ms Platkowski, entered the proceedings and her counsel, Ms Ben-Simon has, with the assistance of Ms Stoikovska, who appears for the wife and Ms Piggott for the husband, resolved the issue.

12. I suspect that the role of Ms Platkowski in the litigation as the secondnamed respondent was going to be a difficult one particularly as to the burden of proof.  But nonetheless, I make no criticism against her, because loyalty and characteristics such as that are very important, whether for good or other reasons.  History has been replete with incidents that are underpinned by loyalty.

13. It seems to me that Ms Platkowski has adjusted the issue generously and in so doing demonstrated good faith and respect to both of her parents.  I wish all parties and their children good fortune and a long life into the future.  If there is one thing that I would ask of the parties as they leave the court this day and that is to leave behind them any feeling of ill will or bad faith.  Ultimately, as this family would have learned from their wartime experiences, the unity of family is central to their life.  My expectation is that this family will put behind them this battle and move forward into the future with dignity and respect for each other.

14. I see there is a Notation to the order, that it is the intention of the wife, who will, pursuant to the court orders, become the registered proprietor of the former matrimonial home, to permit the husband, in the event that he wishes to do so, to reside with her in that property.  She attaches two terms and conditions, which undoubtedly will be respected by the husband.  I am rather attracted to the idea, frankly and it may well be that is how it will end after such a long and tortuous journey.  If it does, it will be, I suspect, a good ending.

15. I have had the advantage of Ms Stoikovska outlining to me the rationale of the adjustments between both the husband, the wife and Ms Platkowski.  I need not record into this short extempore commentary the basis for the settlement, save to say that it is one entered into within the umbrella of the principles and objects of the Family Law Act 1975 (as amended), and sits seamlessly with those matters referred to in section 79(4) and section 75(2) of the Act.

16. There are obligations on judges of this court to be satisfied that orders are just and equitable, notwithstanding they are made by consent.  I am quite satisfied on all the data that is available to me, and I am very familiar with the facts and circumstances of these proceedings, that the orders entered into are just and that they are equitable.  They demonstrate respect.

17. I congratulate the parties again, on having the dignity and importantly, the honour in coming to this adjustment.  I mark the Minute of Consent Orders Exhibit “A”.  I make orders in terms of Exhibit “A”, and I direct solicitors for wife to engross the orders.  I note the removal of the proceedings from the Active Pending Cases List.  Thank you very much Ms Stoikovska, Ms Ben-Simon and Ms Piggott for your assistance.  I appreciate and value greatly the professional wisdom you have brought to all clients in this matter.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  24 September 2007.