Rogers and Watson

[2008] FamCA 827

FAMILY COURT OF AUSTRALIA

ROGERS & WATSON [2008] FamCA 827

FAMILY LAW – PROPERTY – Orders to be re-drafted - S79(2) Just and equitable

Family Law Act 1975 (Cth)

APPLICANT: MS ROGERS

RESPONDENT: MR WATSON

FILE NUMBER: MLF 1483 of 2006

DATE DELIVERED: 22 SEPTEMBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 22 SEPTEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR KORDOS

SOLICITOR FOR THE APPLICANT: BERGER KORDOS

COUNSEL FOR THE RESPONDENT: MR KOURKOULIS

SOLICITOR FOR THE RESPONDENT: S. KOURKOULIS & ASSOCIATES

ORDERS

IT IS ORDERED BY CONSENT:

1. THAT That all previous Orders made by this Honourable Cout be discharged.

2. That within thirty (30) days of the date of these Orders the Husband is to pay to the Wife the sum of $90,000 and the balance of $200,000 within sixty (60) days from the date of these Orders.

3. THAT within sixty (60) days the Husband do all such acts and things and sign all documents as may be required to transfer to the Wife, at her expense, all of the Husband’s right, title and interest in the real property situate at and known as …. in the State of Queensland (‘the Queensland Property’).

4. THAT contemporaneously with Order 3, the Husband do all such acts and things and sign all documents necessary to discharge the mortgage in favour of the Commonwealth Bank of Australia (‘the Queensland Mortgage’) and release the Queensland property as security for any future borrowings. 

5. THAT the Husband indemnify the Wife and keep her indemnified against all accrued to date rates, taxes, outgoings, body corporate fees, stamp duty and any other encumbrances of or with respect of the Queensland property of whatsoever nature and kind. 

6. THAT within sixty (60) days the Husband and Wife do all such acts and things and sign all documents as may be required to transfer to the Wife, at her expense, all of the right, title and interest of the parties’ adult son (with the Husband warranting that he has the ability, capacity and power pursuant to a Power of Attorney to transfer) the following properties:

   a)A1 in the State of Victoria being the whole of the land more particularly discbribed in Certificate of Title Volume …; and

   b)A2 in the State of Victoria being the whole of the land more particularly discribed in Certificate of Title Volume …

   (‘the [A] properties’).

1. THAT contemporaneously with Order 6, the Husband do all such acts and things and sign all documents necessary to discharge the mortgage in favour of the RAMS Corporation Limited (‘the [A] mortgage’) registered against A1 and A2.

2. THAT the Husband indemnify the Wife and keep her indemnified against all accrued to date rates, taxes, outgoings, body corporate fees and any other encumbrances of or with respect of the A properties of whatsoever nature and kind and the Wife is to pay all stamp duty associated with the transfer of the A properties into her name.

3. THAT within thirty (30) days the Husband and Wife do all such acts and things and sign all documents as may be required to transfer to the Wife, at her expense, all of the Husband’s right, title interst in the Taxi Licence No. ….

4. THAT the Wife forego any claim or right to claim any interest, entitlement or benefit in the Watson Family Trust and the Watson Property Unit Trust.

5. THAT contemporaneously with complaince with Orders 3 and 6 herein, the Husband and Wife do all acts and things and sign all documents to withdraw the monies held in Trust with GPZ Legal with the proceeds to be retained by the Husband. 

6. THAT the Husband retain to the exclusion of the Wife the following:

   a)P1in the State of Victoria;

   b)P2 in the State of Victoria;

   c)X Pty Ltd;

   d)Share Portfolio including any and all superannuation in the name of [the wife] or which otherwise is for her benefit. 

7. THAT unless otherwise specified in these Orders and 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 parties as at the date of these Orders (furniture, personal possessions and the like chattels) in the real property excluding the Wife’s superannuation benefits which remain the property of the Husband;

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

   c)each party be solely liable for and indemnify the other against any liability, including taxation, encumbering any item of property to which that party is entitled pursuant to these Orders with the Husband being solely liable for any trust liability;

   d)any joint tenancy of the party, any real or personal estate is hereby expressed as severed;

   e)any accrued to date tax liabilities of the parties remain their respective responsibility including any professional fee relating to same; and

   f)any of the Wife’s current superannuation entitlements in the parties’ superannuation fund are to vest with the Husband and the Wife has no claim to that fund.

8. THAT the Husband and Wife do all such acts and things and sign all documents to give full force and effect to the terms of these Orders.

9. THAT these Orders are made pursuant to Section 77(A) of the Family Law Act 1975 (Cth) and the sum of $50,000 of the value of the portion of the property to be retained by the Wife if attributable to the provision of maintenance for the Wife.

10. THAT otherwise all extant application be dismissed and the proceedings removed from the docket of Young J.

11. THAT all documents produced to the Court pursuant to the Subpoenas be returned by the Subpoena Registry, Family Court of Australia at Melbourne, to the persons or organisations named in the Subpoena.

12. THAT any future listing date be vacated.

AND THE COURT NOTES:

A.THAT the Husband and Wife have agreed that the A properties are an asset to the marriage which forms part of the asset pool to be ditributed between the parties.

B.THAT the Husband warrants to both the Wife and the Court that to give full force and effect to these Orders the Husband does not need the consent or permission of any third parties.

C.THAT pursuant to s.81 of the Family Law Act 1975 (Cth) these Orders shall as far as practicable finally determine the financial relationship between the parties.

D.THAT the transcript of these proceedings be made available to the parties.

E.THAT the matter was stood down to enable the Husband’s solicitors to telephone the Husband to obtain his instructions therein as the Husband was not present in Court and the Husband gave his instructions to the Husband’s solicitors.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1483 of 2006

MS ROGERS

Applicant

And

MR WATSON

Respondent

REASONS FOR JUDGMENT

1. The matter of Rogers & Watson is before me for the pronouncement of final orders resolving all property and financial issues between the parties.  The solicitors for each of the parties are in court, as is the wife.  The husband is not in court but his solicitor has been able to ring him by telephone in the period over which I stood this matter down and has up‑to‑date instructions which confirm that the husband would have the orders made in this amended form this day.

2. The background of the matter is detailed in all of the affidavit material and the wife's solicitor has touched upon the marriage and financial issues.  The overview of the settlement is that the wife takes a payment of $290,000 on terms, together with the transfer to her of an apartment in Queensland and a further apartment in A, Victoria, together with its carparking space.  The transfer of the licence to operate a taxi is provided for in paragraph 9 to the wife's benefit.

3. The husband will retain the assets and liabilities of the family trust and the property unit trust as described in paragraph 10 and the proceeds of the moneys identified in paragraph 11.  Otherwise the husband exclusively has the benefit of the assets, including real property, in paragraph 12 of the orders.

4. As to superannuation, the fund has been described to the court this day as a non-complying fund.  The court, because these are consent orders, has not looked behind any issue or problem that may exist with the fund, but the provision of these orders mean that the parties have negotiated a final and all inclusive outcome.  The husband will retain the fund and the wife will have no interest in the assets or income of the funds.

5. There was specific discussion between the parties and the amendments have been made to clause (c) and with the addition of clauses (e) and (f) of paragraph 13.

6. The other amendments made at court today arose from discussion between solicitors and myself and they have largely led to the inclusion of orders 16, 17 and 18 in the orders and each of the notations.

7. I am asked by the parties to accept that the husband has the level of power or authority to deal with all of the assets in his name or to which he is to receive pursuant to these orders and they are to be balanced in the consideration of the pool of assets and therefore what is a just and equitable order pursuant to section 79(2) of the Family Law Act 1975.

8. As an overview, and having regard to the earlier affidavits I have read in the matter and particularly the submissions of solicitors for both parties, and the fact that there are signed consent orders, I am satisfied that these orders are just and equitable and I will make final orders this day.

   MR KOURKOULIS:   Your Honour, I apologise, if I could just make one - in the interests of transparency and fairness, paragraph number 6.  In order to be fair as well, I think it probably would be appropriate on the second line to have "the husband's son's right title and interest" because the husband, strictly speaking, has no entry because he is not the proprietor.  So in order to be fair to [the wife] as well.

   MR KORDOS:   That's why his Honour asked about the power.  I understand he holds a ‑ ‑ ‑

   MR KOURKOULIS:   Yes, we have power, of course.

   HIS HONOUR:   Yes, go on.

   MR KOURKOULIS:   But I would maybe think it would be prudent to have "husband's son's interest", and we do have the power.  We warrant that we have the power, but just for the sake of completeness.  Perhaps it's being a little bit over-zealous but ‑ ‑ ‑

   HIS HONOUR:   Well, if what you're saying is that to transfer where it has got all of the husband's right title and interest ‑ ‑ ‑

   MR KOURKOULIS:   And/or husband's son.

   HIS HONOUR:   Who is the registered proprietor of [A]?

   MR KOURKOULIS:   The son.

   MR KORDOS:   The husband holds a power of attorney.

   HIS HONOUR:   Yes, I understand that.  Strictly speaking it's probably in your client's interest for the order to be "all of the interests of" - and put in the name of the son - (the husband having a power of attorney to deal with and the authority of the son to transfer).

   MR KORDOS:   Happy to do that, your Honour, yes.

   HIS HONOUR:   All right.  Well, paragraph 6, when it comes on the second line will read, "All of the right title and interest of" - and put in the name of the son, and then in brackets after that - "with the husband warranting that he has the authority, permission and ability to transfer pursuant to an existing power of attorney.

   MR KORDOS:   Thank you, your Honour.

   MR KOURKOULIS:   I think it would be ‑ ‑ ‑

   HIS HONOUR:   Now, is the power of attorney an exhibit to the court?

   MR KOURKOULIS:   I believe it may have been filed but I do have copies of it.

   MR KORDOS:   I don't think it's an exhibit, no, your Honour.

   HIS HONOUR:   I probably think that if that's the case it should be at least filed with the court because that will be the authority that the husband is purportedly exercising.

   MR KOURKOULIS:   Exercising.  That's fine, sir.

   HIS HONOUR:   All right.  That discussion that I've just had with solicitors can be incorporated within the reasons, so that it is abundantly clear - and perhaps it is somewhat unique - that the parties understand that the husband has the power of attorney which grants permission and authority to deal with a property of his son's, and there are very particular reasons why the husband has the power of attorney that have been touched on in earlier material with the court, and also the parties intend that adult son - and in his particular circumstances - not to be a party, and the order will be amended to reflect the transfer from his name by the authority of the husband, and the parties request the orders be prepared on that basis.

   The other reason - let me just foreshadow whether or not for any avoidance appropriately of stamp duty or assessment - that the Titles Office will see the transfer is being made from the son's name, who's not a party to the marriage, to the wife's name and it has to be, I would have thought, clearly expressed in these orders that - because the last thing the wife wants is any assessment of stamp duty.

   MR KOURKOULIS:   Sir, there will be.

   MR KORDOS:   There will be.  We've worked it out and we've worked out what price the transfer - that's been factored into negotiations, your Honour.

   HIS HONOUR:   All right.

   MR KORDOS:   But thank you for raising it.  It's a very important issue for my client in particular.

   HIS HONOUR:   It may be that the drafting of the order in that way, particularly if both of you could agree - as a separate notation to the order - that the [A] asset was considered to be an asset of the marriage and was included in the pool of assets.  If you develop an appropriate notation it might be that that will give you some level of argument.

   MR KOURKOULIS:   Sir, I've already tackled that head-on with the State Revenue Office and Mr Brumby wants his money.  "Show me the money" was the response.

   HIS HONOUR:   It doesn't surprise me.  I can't in any way - but I don't see the harm in having a notation ‑ ‑ ‑

   MR KOURKOULIS:   No, more than happy to ‑ ‑ ‑

   HIS HONOUR:   - - - cleverly drafted there.  Probably also - and I might be being pedantic here - another notation Mr Kourkoulis to say that the matter was stood down mid-morning for the husband's solicitor to telephone his client and obtain instructions which he did and the matters are put to the court now on the husband's behalf and on his specific instructions.  I'm just trying to be complete and to ensure that there is the notification that you have put what you were instructed to put.  It's really just endorsing what happened at court today.

   MR KOURKOULIS:   Thank you, your Honour.

   HIS HONOUR:   But I just think it's better in this case that there's a lot of thought put into those notations.  That conversation can be included in the transcript.  Thank you.

9. I will now make the orders, subject to the re-drafting required.  I declare the outcome is just and equitable.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Associate:  …

Date: