Reicher & Reicher
[2008] FamCA 108
•19 February 2008
FAMILY COURT OF AUSTRALIA
| REICHER & REICHER AND ANOR | [2008] FamCA 108 |
| FAMILY LAW – PROPERTY – S79(2) Just and equitable property settlement |
| Family Law Act 1975 (Cth) |
| APPLICANT: | MRS REICHER |
| RESPONDENT: | MR REICHER |
| INTERVENOR: | MS MOSKOWITZ |
| FILE NUMBER: | MLF | 2846 | of | 2006 |
| DATE DELIVERED: | 19 FEBRUARY 2008 |
| PLACE DELIVERED: | MELBOURNE |
| PLACE HEARD: | MELBOURNE |
| JUDGMENT OF: | YOUNG J |
| HEARING DATE: | 19 FEBRUARY 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR SWEENEY |
| SOLICITOR FOR THE APPLICANT: | BERGER KORDOS |
| COUNSEL FOR THE RESPONDENT: | MS STOIKOVSKA |
| SOLICITOR FOR THE RESPONDENT: | GLEZER LANTERI & ASSOCIATES |
| COUNSEL FOR THE INTERVENOR: | MR SALAMANCA |
| SOLICITOR FOR THE INTERVENOR: | WEBB KORFIATIS |
ORDERS
THAT the real property situate at and known as B… be offered for sale by public auction within sixty (60) days by an Estate Agent at a reserve price and on terms and conditions to be agreed between the husband and wife or in the absence of any agreement, on any matter within fourteen (14) days the matters be determined by the Chief Executive Officer of Real Estate Institute of Victoria or his or her nominee (“the REIV”).
THAT in the event that the B property not sell at auction then the property be offered at private sale at the reserve price or other price recommended by the selling agent and on terms and conditions agreed or as specified by the REIV in the event of disagreement.
THAT the solicitor who will be responsible for conducting the conveyance associated with the sale is to be agreed to between the parties within fourteen (14) days and failing agreement to be nominated by the President of the Law Institute of Victoria.
THAT the husband be entitled to visit and inspect B property on one (1) occasion prior to the property being placed on the market with the Estate Agent upon providing to the wife seven (7) days prior written notice and during that visit the Estate Agent determine whether any and if so what repairs or improvements ought to be undertaken to the dwelling at B to maximise the sale price.
THAT the parties follow the recommendations of the selling agent as to the expenditure of reasonable sums to maximise the sale price of B property such expenditure is to be limited to no more than $5,000.00.
THAT between this date and the settlement of the sale of B property:-
(a)the wife pay any interest on the mortgage and any rates due in that period and any arrears of rates and taxes as may have accumulated;
(b)the parties each ensure that B property is insured pending settlement and each be responsible for one half of such cost.
THAT upon the settlement of the sale of B property, the proceeds be applied as follows:
(a)first to pay the costs of and incidental to the sale;
(b)secondly to discharge the mortgage registered on the Title to B property (approximately $59,000);
(c)thirdly to pay to Ms Moskowitz (“the Intervener”) the sum of $28,000;
(d)fourthly to pay the costs of any recommended repairs undertaken pursuant to paragraph 4 hereof;
(e)fifthly to reimburse the cost of any insurance paid on the dwelling at B in the event that either party fails to pay his/her share;
(f)the balance:
(i)50% to the wife; and
(ii)50% to the husband.
THAT the wife pay to the Intervener, if and when called upon to do so, the sum of $100,000 and she indemnify the husband in respect to that payment.
THAT the Intervener forthwith release the husband from any debt owing or liability to her of whatsoever nature and kind;
THAT the husband forthwith appear, if and when called upon by the wife so to do, before the Melbourne Beth Din (Jewish Religious Court) and deliver into her hand a gett (Jewish Bill of Divorcement) if and when the same has been ordered, directed or recommended by the said Religious Court and do all other acts and things as may be required of them to give validity and operation, according to Halakhah (Orthodox Jewish law), to any such order, direction, recommendation or grant by the said Religious Court for a divorce in accordance with Orthodox Jewish law, provided always and it is hereby declared that this order not be construed as in any way inhibiting, directing, influencing, or controlling any deliberation, decision, order, decree, direction or recommendation of the said Religious Court or in any way inhibiting the husband or wife in making any application, request or submission to the said Religious Court or, save as aforesaid, to deny him or her any right or privilege he or she would otherwise have.
THAT unless otherwise specified in these Orders and save for the purpose 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 (furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the wife);
(b)each party retain their superannuation entitlements in their respective names;
(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 party in any real or personal estate is hereby expressly severed;
THAT the extant applications of the husband and the wife and the Intervener respectively (including the application of the husband for spousal maintenance) be otherwise dismissed and otherwise the proceedings be removed for the list of cases awaiting Trial.
THAT all subpoenaed documents produced to the Court be forthwith returned to the Individual or organisation producing same.
IT IS NOTED
A.THAT pursuant to s81 of the Family Law Act that the parties intend that these orders shall, as far as is practicable, finally determine their financial relationship and avoid further proceedings between them
IT IS NOTED that publication of this judgment under the pseudonym Reicher & Reicher & Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 2846 of 2006
| MRS REICHER |
Applicant
And
| MR REICHER |
Respondent
And
| MS MOSKOWITZ |
Intervenor
REASONS FOR JUDGMENT
In the matter of Reicher & Reicher and Moskowitz, the parties before the court are husband and wife, and the intervener is the mother of the wife. Experienced counsel appeared on the first day of the hearing. I also observed that the solicitors retained by all parties had considerable and specialist Family Court practice experience.
This matter was negotiated out of court and largely resolved yesterday. The matter was relisted today and counsel for the intervener was excused but with his solicitor now present so that the intervener could have read to her and be fully informed by the parties, through an appropriate interpreter, of the consent agreement. I am satisfied that the intervener would now have fully understood and Mr Korfiatis, solicitor, has conveyed to the court her knowledge, understanding and acceptance of this order. Otherwise, I have read the whole of the relevant documents relied upon, including the financial statements and case summaries. I am aware of the length of the marriage and financial circumstances of the parties through the marriage, and current. The primary asset is the home at B. It had an agreed valuation at $910,000. The accuracy thereof is to be tested as the property is to be auctioned or otherwise sold by private sale. The proceeds of the sale of the home represent the great majority of the assets in this marriage. The parties otherwise will retain superannuation, some savings, furniture and smaller items, and there have already been moneys paid to or, otherwise it might be said, repaid to the intervener.
The obligation of the court under section 79(2) of the Family Law Act 1975 is to determine a just and equitable settlement. In this matter I have regard to what I have read and understood from the facts before the court. Otherwise I have the consent of the parties, assisted by the experience of counsel and solicitors. My independent overview is that this settlement falls within the ambit of what is just and equitable. I need make no further or more precise finding once I conclude that it satisfies the requirements of section 79(2) of the Act and this I so declare.
There is an order incorporated within the minutes for the husband to do all acts required so as to enable the announcement of a Jewish Bill of Divorcement to the extent that that provides for his obligation to physically hand over documents by or as directed by the Beth Din. The commonsense approach of the parties is for that divorce to be announced expeditiously and no doubt at minimum expense, which the wife will wholly bear by the consent orders.
These orders conclude all family law proceedings between the parties. I will discharge all applications of the husband, the wife and the intervener, and the proceedings are removed from the list of cases awaiting hearing. I observe that, in any event and as to the question of finality, there is a section 81 notation accompanying these orders. I will have these reasons transcribed and placed on the file and, if required and on application, they can be released to the parties or any of them.
I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young
………………………………………………………..
Associate:
Date: 26 February 2008
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