Smith and Dinci

[2013] FamCA 216

FAMILY COURT OF AUSTRALIA

SMITH & DINCI [2013] FamCA 216

FAMILY LAW - PROPERY - Consent Orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Smith

RESPONDENT: Mr Dinci

FILE NUMBER: BRC 10762 of 2008

DATE DELIVERED: 8 April 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 8 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson of Senior Counsel

SOLICITOR FOR THE APPLICANT: Murdoch Lawyers

COUNSEL FOR THE RESPONDENT: Dr Sayers of Counsel

SOLICITOR FOR THE RESPONDENT: Lillas & Loel Lawyers

Orders

IT IS ORDERED THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

“Minutes of Consent”

BY CONSENT IT IS ORDERED:

Real Property

1. That within sixty (60) days of the date of these Orders, the Respondent/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 property situated at M Street, C Town in the State of Queensland and known as being the whole of the land more particularly described as Lot … on RP …, County of N, Parish of P, Title reference … (“the M Street Property”).

2. The contemporaneously with the transfer referred to at Order 1 herein, and save for Order 3 herein, the Wife shall also do all acts and things necessary to refinance the National Australia Bank mortgage (no. …), and any other encumbrances other than that protected by the caveat referred to in Order 3 herein, secured over the M Street property into her sole name, and shall release and indemnify the Husband in relation to the same.

3. The contemporaneously with the transfer referred to at Order 1 herein the Husband shall take all necessary steps and sign all necessary documents to cause caveat number … (lodged over the M Street property by the Commonwealth of Australia) to be removed, at his expense.

4. That within sixty (60) days of the date of these Orders, 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 property situated at F Street, C Town, in the State of Queensland and known as being the whole of the land more particularly described as Lot … on RP …, County of N, Parish of P, Title reference … (“the F Street property”).

5. That contemporaneously with Order 4 hereof, and save for Order 6 herein, the Wife shall also do all acts and things necessary to refinance the National Australia Bank mortgage (no. …), and any other encumbrances other than that protected by the caveat referred to in Order 6 herein, secured over the F Street property into her sole name, and shall release and indemnify the Husband in relation to the same.

6. That contemporaneously with the transfer referred to at Order 4 herein the Husband shall take all necessary steps and sign all necessary documents to cause caveat number … (lodged over the F Street property by the Commonwealth of Australia) to be removed, at his expense.

Cash Payment

1. That contemporaneously with the latter of the transfers referred to at Orders 1 and 4 herein the Wife shall pay to the Husband, via the trust account of the solicitors for the Husband, the sum of $35,000.00.

Animal Breeders Association Registration

1. That within seven (7) days of the date of these Orders the Husband withdraws, in writing, any complaint made to the Animal Breeders Association of Australia (ABAA); and contemporaneously provides a copy of that letter of withdrawal to the solicitors for the wife.

2. That contemporaneously with Order 8 the Husband and Wife do all acts and things necessary to cause ABAA joint membership number … to be transferred from joint names into the sole name of the Wife. 

3. That in the event that ABAA joint membership number … cannot be transferred from a joint membership to a single membership the parties shall do all acts and things necessary to cancel ABAA joint membership number ….

4. That the Husband forthwith relinquish any and all right, title and interest that he may in:

   (a)       ABAA joint membership number …; and,

   (b)Subject to Order 12, any animals under ABAA joint membership number ….

‘H’ Animal

1. That within thirty (30) days of the date of these Orders the Wife shall cause ‘G Trust’ to transfer to the Husband the animal known as ‘H’, with that animal being, born … October 2000 to J x K.

2. That upon transfer the Wife shall cause the animal to be delivered to any location within Queensland that may be nominated by the Husband.

Personal Property

1. That save and except as provided above, the Husband forthwith retain as his absolute property, the title and possession of and the Wife forthwith relinquish and/or transfer all right, title and interest that she may have in and to the following property and financial resources:

   (a)the real property (if any) currently registered in the Husband’s name, or any entity controlled by the Husband,

   (b)       the furniture, chattels and effects currently in the Husband’s possession;

   (c)       the Husband’s bank account(s);

   (d)       the motor vehicle(s) currently in the possession of the Husband;

   (e)       the Husband’s superannuation entitlements;

   (f)       the Husband’s share holdings (if any); and

   (g)all other proprietary interests of whatsoever nature in the Husband’s current possession and/or control.

2. Save and except as previously provided for herein, the Wife forthwith retain as her absolute property, the title and possession of and the Husband forthwith relinquish and/or transfer all right, title and interest that he may have in and to the following property and financial resources:

   (a)the real property currently registered in the Wife’s name, or an entity controlled by the Wife,

   (b)the furniture, chattels, personal effects and jewellery currently in the Wife’s possession;

   (c)       the Wife’s bank account(s);

   (d)       the motor vehicle currently in the possession of the Wife;

   (e)       the Wife’s share holdings (if any);

   (f)       the Wife’s superannuation entitlements; and

   (g)all other proprietary interests of whatsoever nature in the Wife’s current possession and/or control.

Liabilities and Indemnities

1. That the Husband and the Wife each be responsible for liabilities incurred in their name including all borrowings, personal loans, credit card facilities, tax debts or other debts to the Commonwealth or States and shall indemnify and keep indemnified the other against any liability that occur in respect thereof.

2. That the Husband and Wife each be responsible for liabilities (and shall indemnify and keep the other indemnified) in relation to any entity to which the Husband or Wife holds any interest, either directly or indirectly, and including but not limited to any entity which the Husband or Wife is a:

   (a)       Director (if a company),

   (b)       Secretary (if a company),

   (c)       Shareholder (if a company),

   (d)       Appointer (if a trust),

   (e)       Trustee (if a trust),

   (f)       Beneficiary (if a trust).

Miscellaneous

1. That the Husband and Wife each do all acts and things necessary, including signing all necessary documents, so as to give full force and effect to the provision of these Orders and in the event that either party refuses or neglects to comply with any provision of these Orders within fourteen (14) days of a written request to do so by the other party, then a Deputy Registrar of the Family Court of Australia at Brisbane be hereby appointed, pursuant to Section 106A of the Family Law Act, to execute all documents in the name of that party and do all acts and things necessary to give validity and operation to these Orders.

2. That the transferee spouse prepare any documents necessary to give effect to the provision of these Orders at their costs and further be responsible for payment of registration fees (if any) in relation to the transfer of any properties into their name.

3. That either party have liberty to apply to this Honourable Court on the giving of seven (7) days notice in writing to the other for the interpretation and/or enforcement of the terms and conditions hereof and full consequential Orders.

4. That other than as provided for herein, the parties each bear their own costs of and incidental to, these proceedings including, but not limited to, any orders for costs which may have been made.

5. That all pending applications, whether final or interim, be otherwise dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Smith & Dinci has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10762 of 2008

Ms Smith 

Applicant

And

Mr Dinci

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the parties commenced co-habitation in late 2002/early 2003, married in 2003, and finally separated in 2008. Thus the period of cohabitation was approximately six years and ended almost four and a half years ago. There are no children of the relationship.

2. The Wife had separated from her husband, Mr L in early 2002 and proceedings in respect of that marriage commenced in March 2003 and subsisted throughout the period of these parties’ relationship with Federal Magistrate Baumann delivering a decision in December 2008 shortly after these parties’ separated.

3. I have read the material for the purpose of the trial today being the material outlined in the Wife’s Case Information document filed 19 June 2012 in respect of her material and, as noted on the record, I have read the Husband’s historical material plus I have given him leave today to file a financial statement sworn today. From that material it is readily plain that there was a degree of complexity about the historical financial arrangements between the parties or at least a dispute between them as to the extent of contribution by each.

4. On the Wife’s case she had always been a property developer and essentially had substantial property at the outset of the relationship and via the property settlement with her former husband. On the Husband’s case he asserts contributions made to the Wife’s property development business which are denied.

5. In the result, the consent orders that have been framed by the parties in circumstances where they are both legally represented by solicitor and Counsel obviously represent a compromise on potential outcomes in terms of the proceedings.

6. I am satisfied having regard to the issues that were involved in the matter that the consent orders reached achieve a just and equitable outcome in all the circumstances and I therefore make orders in terms of the consent orders that have been signed by the parties which are now initialled by me and placed with the file.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 April 2013.

Associate:

Date:  8 April 2013