Russo and Russo

[2008] FamCA 605

FAMILY COURT OF AUSTRALIA

RUSSO & RUSSO [2008] FamCA 605

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable - S79(2) of the Act

Family Law Act 1975 (Cth)

APPLICANT: MS RUSSO

RESPONDENT: MR RUSSO

FILE NUMBER: MLF 1050 of 2006

DATE DELIVERED: 29 JULY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 25 - 29 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR O'SHANNESSY

SOLICITOR FOR THE APPLICANT: TOLHURST DRUCE & EMMERSON

COUNSEL FOR THE RESPONDENT: MR GEDDES QC  with MR GUZZO

SOLICITOR FOR THE RESPONDENT: CAVOLI & CO

ORDERS

IT IS ORDERED BY CONSENT:

1. THAT the husband pay to the wife the sum of $700,000 (“the total final payment”) by payment as follows:

   a.on or before 4.00 p.m. on Tuesday12 August 2008 (‘the first date”) the sum of $60,000 (“ the first final payment”) by payment to the trust account of the wife’s solicitors;

   b.on or before 4.00 p.m. on Tuesday 29 January 2009 (‘the second date”) the sum of $640,000 (“ the second final payment”) by payment to the trust account of the wife’s solicitors.

2. THAT the wife retain for her own use and benefit all and any payments made to her pursuant to any order or agreement in these proceedings and being:

   Amount   Cheque no.

   $8,000  #000563

   $10,000  #000576

   $31,200  #000620

   $10,400  #000698

   $25,000  #000760

   $30,000  #000786

   $15,000  #000790

   Total                   $129,600

3. THAT contemporaneously with the first final payment:

   a.the wife provide a withdrawal of the caveat lodged by her former solicitors Coady’s in a form able to be lodged and;

   b.the wife provide a withdrawal of any caveat lodged by her over or relating to the property of the husband situated and known as Properties 1, 201, 203, 204, 404, 405, 504, 505 & 704, at H (the H properties) and;

   c.the husband execute any document required to permit and cause Russo Nominees Pty Ltd to consent to the wife lodging a caveat over the S Business for the purpose of securing the outstanding payment to be made pursuant to these orders.

4. THAT contemporaneously with the second final 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:

   i.property situate at known as F being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the [F] property”);  and

   ii.any debt or loan account in her favour in or related to Russo Nominees Pty Ltd and/or the Russo Family Trust (if any);

   b.the husband pay, discharge, re-finance and indemnify the wife against all payments and liability pursuant to any registered mortgage to the National Australia Bank (“the [F property] mortgage”) and all taxes including income taxes, capital gains tax and all apportionable rates, taxes and outgoings of or with respect to the F property of whatsoever nature and kind and any guarantee provided by the wife to the National Australia Bank relating to Russo Nominees Pty Ltd as trustee for the  Russo Family Trust, the husband and or the H properties, the S Business and the F property and the husband’s overdraft;

   c.the wife provide a withdrawal of any caveat lodged by her over the S Business.

5. THAT in the event that the whole of the first payment and or the second payment has not been made by the due date then after the expiration of a further fourteen (14) days the husband and wife sign all documents and do all things necessary to cause the F property, and if necessary the H properties and then if necessary the S Business, to be forthwith sold altogether out of court (“the sale”), and upon completion of the sale, the proceeds of the sale be applied:

   a.first to pay all costs, commissions and expenses of the sale;

   b.secondly to discharge the mortgage and any other encumbrance affecting the real property;

   c.thirdly so much of the first and second final payment as is then outstanding together with interest thereon at the penalty rate applicable in the Family Court adjusted monthly from the first and or second date as the case maybe to the wife;

   d.fourthly the balance to the husband.

6. THAT pending the payment or completion of the sale:

   a.the husband have the sole right to occupy the F property and that during such right of occupation the husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the F property as they fall due;

   b.the parties hold their respective interests in the F property, the H properties and the S Business (“the husband’s properties”) upon trust pursuant to these orders; and

   c.neither party encumber the husband’s properties without the consent in writing of the other party save to the extent necessary to comply with these orders.

7. THAT there be liberty to apply in the event of default or dispute as to sale upon default.

8. THAT the husband upon seven (7) days request in writing to his solicitor, and such request to be within 30 days forthwith do all necessary acts and things to make available for collection by the wife and her agents the items of personal property as described in attached list A and the wife, by retaining a removalist and not herself or her son, be permitted to pack and remove the items but to do so within three (3) hours and the husband to do all things to co operate with the removalist

9. 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 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 possession, and like chattels in the F property being deemed to be in the possession of the husband);

   b.insurance policies remain the sole property of the owner/beneficiary named thereon/in;

   c.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;

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

10. THAT the amended applications of the husband and the wife respectively including the wife’s extant application for lump sum and periodic spousal maintenance filed in the proceedings by leave of the court be and are dismissed.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel including Senior counsel for each of the husband and wife.

2. THAT all/property/maintenance issues be removed from the pending cases list of the Court and the docket of Young J.

3. THAT the minutes of consent orders remain on the court file.

4. THAT the subpoena clerk of the Melbourne Registry of the Court forthwith return documents produced on subpoena to the person or institution producing same.

THE COURT NOTES:

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

B.THAT the parties have executed a Binding Financial Agreement to effect an end to any spousal maintenance obligations of one to the other to the effect that nil maintenance is payable.

C.THAT the husband has paid or will pay outstanding single expert fees without deduction.

D.THAT at the request of the parties and on the basis of final settlement all exhibits, other than original documents produced on subpoena, have been returned to the party tendering same.

E.THAT the parties do not have any joint bank account and neither has any superannuation.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1050 of 2006

MS RUSSO

Applicant

And

MR RUSSO

Respondent

REASONS FOR JUDGMENT

1. In the now resolved defended matter of Russo I have had some days of evidence and have listened carefully to both the husband and wife.  The husband's oral evidence was incomplete, in that he was still under vigorous cross‑examination.  That said, I have read all of the affidavits in this matter many times over, and there have been several lengthy interchanges between myself and counsel that I need not refresh.  The bottom line is that the parties propose a final settlement to the court, whereby the wife retains that which she has previously received pursuant to court order and will receive an additional $700,000.

2. The payment terms are specified in the order.  Predominantly they are cash within a reasonable time frame.  There is to be no spousal maintenance paid.  There is a division of chattels.  The husband will retain the F property and will live in that home hereafter.  Both parties have substantial legal fees and they are responsible for all of their costs and expenses of and associated with this hearing.

3. My obligation is to discharge the requirements of s79(2) of the Family Law Act 1975, that is to make final property orders only when they are just and equitable. I have a unique appreciation of this case, of all of the matters and facts before the court and of the parties. I have formed very clear and distinct observations and findings of the parties, but I need not now trouble myself or inform the parties of any of those matters. My obligation is only to determine if the orders are just and equitable.

4. I conclude that these orders are proper, all matters considered and given the ongoing framework of the case, finality is to be applauded in this case at their respective ages and with health and other family issues, and with the particular background history and the evidence of Dr A.  I have no hesitation in accepting the quantum of the orders and the finality of the orders.  I declare the orders are just and equitable.  I will sign orders when they are produced to my court associate, and would hope that would be by Friday afternoon, though perhaps there is still some finetuning in terms of the amendments discussed.

5. In the matter of Russo, the structure of the order will provide for the husband as the surname Russo, the wife Russo (now known as …), and the orders 1:  I order in terms of the minutes of orders.  2:  I request the wife's solicitors to forthwith embrace and when agreed to and formally acknowledged by solicitors and counsel for the husband, then to forward by email transmission to my associate the completed document and annexures.

6. For case management purposes all extant applications, both interim and final, are dismissed.  Proceedings are removed from the docket of Young J and the list of cases awaiting hearing.

7. There are no orders as to costs - I observe that all parties are paying their own costs and disbursements incurred to date.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:                
Date: 4 August 2008