Southall and Antoniadis

[2007] FamCA 363

FAMILY COURT OF AUSTRALIA

SOUTHALL & ANTONIADIS [2007] FamCA 363

FAMILY LAW - PROPERTY SETTLEMENT – Contest between parties adjusted by agreement by taking a practical approach to the various issues between them – The arms length adjustment was appropriate in the circumstances.

APPLICANT: Ms Southall

RESPONDENT: Mr Antoniadis

FILE NUMBER: MLF 3538 of 2005

DATE DELIVERED: 16 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 16 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Spong

SOLICITOR FOR THE APPLICANT: Glezer Lanteri & Associates

COUNSEL FOR THE RESPONDENT: Ms Drummond

SOLICITOR FOR THE RESPONDENT: Secombs

Orders

1. That within 30 days of the date of these orders ("the Date") the husband and the wife do all things and sign all documents as may be required to:

   (a)transfer to the wife, at her expense, the property known as and situated at P particularised in Certificate of Title Volume … Folio … ("the [P] property"); and

   (b)transfer to the husband at his expense the parties' joint T and I investments and entitlements; and

   (c)transfer to the husband at his expense, all shareholdings held by either of them in J Company ("[J] and

   (d)assign the loan owed by J Company to the wife to the husband at the husband's expense ("the Transfers").

2. That contemporaneously with the Transfers the husband and the wife will do all things and sign all documents as may be required to enable:

   (a)the husband to remove his name and control from all education funds held by the parties on trust for the son and daughter and transfer control of those funds to the wife at her expense if any for her use for the benefit of the son and daughter;

   (b)the wife to resign from any office held by her in J Company at the husband's expense;

   (c)the wife to refinance at her expense the National Australia Bank Mortgage encumbering the P property into her sole name ("the Mortgage Refinance");

   (d)the husband to do all things and sign all documents to withdraw caveat number … encumbering the P property at his expense;

   (e)the wife to make a payment to Secombs solicitors on behalf of the husband in the sum of $130,000 ("the Payment");

   (f)the husband to do all things necessary to clear all outstanding debt and refinance the debt owing to T Company and any related parties in the parties' joint names into his sole name ("the [T] Refinance");

3. That the husband pay, refinance, be responsible for and indemnify the wife for all past present and future debts incurred by J Company such debts to include but not be limited to taxation debts, contingent and pending legal claims against J Company and accounting fees.

4. That the wife be solely liable for and indemnify the husband against all payments and liability pursuant to the mortgage registered number … to the National Australia Bank Limited ("the mortgage") and all apportionable rates, taxes and outgoings of or with respect to the P property of whatsoever nature and kind.

5. That in the event the whole of the Payment has not been made by the Date, then the parties sign all documents and do all things necessary to forthwith sell the P property altogether out of court ("the sale") and the proceeds of the sale be applied:

   (a)Firstly to pay all costs, commissions and expenses of the sale;

   (b)Secondly to discharge the mortgage and any other encumbrance affecting the real property save for caveats lodged by either of the parties to secure legal costs;

   (c)Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 10.75% per annum adjusted monthly from the date to the husband;

   (d)Fourthly the balance to the wife.

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

   (a)The wife have the sole right to occupy the P property and during such right of occupation the wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the P property as they fall due;

   (b)The parties hold their respective interests in the P property upon trust pursuant to these orders:

   (c)Neither party encumber the P property without the consent in writing of the other party.

7. That pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment becomes payable in respect of the wife's interest in A Super Account account number … (“the Fund”), the husband shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using a base amount as at the operative date in the sum of $40,000 and that there be a corresponding reduction in the entitlement the wife would have had in the Fund but for this order.

8. The operative date referred to in paragraph 7 is four business days after the date that these orders are served upon the Trustee of the Fund. 

9. That until the happening of any of:

   (a)the establishment of a separate account in the name of the husband in the Fund; or

   (b)the transfer or “rolling over” into another superannuation fund of the payment split created by Order 7; or

   (c)the husband satisfying a condition of release and being paid the payment split created by Order 7; or

   (d)the husband executing a Waiver of Rights within the meaning of Section 90MZA of the Act regarding the payment split created by Order 7,

   the wife be and is hereby restrained by herself, her servants and/or agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interest in the fund a “non-splittable payment” within the meaning of Regulations 12, 13 and 14 of the Regulations and the Trustees give effect to this order.

10. That pending the payment provided for in paragraph 7, the wife by herself, her servants and/or agents be restrained from encumbering, disposing of or otherwise dealing with his interest in the Fund and/or from doing any act or thing which would prevent the husband, his heirs, his executors, administrators or nominees from receiving the benefit in the Fund to which he is entitled pursuant to these orders.

11. That paragraphs 7 to 11 inclusive of this Order are binding upon the Trustee of the Fund.

12. That the wife is the member spouse.

13. That the husband is the non-member spouse.

14. That unless otherwise specified in these orders and save for the purposes 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, motor vehicles and shares) in the possession of such party as at the date of these orders.

    (b)monies standing to the credit of either party in the bank, building society or investment account are to become the property of the account holder.

    (c)each party forego any claims they may have to any superannuation or other employment related benefits belonging to or earned by the other. 

    (d)insurance policies remain the sole property of the owner named thereon.

    (e)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.

IT IS DIRECTED:

1. That all outstanding applications be dismissed and removed from the List of Cases awaiting Finalisation.

2. That the Minutes of Consent Orders remain on the Court file.

IT IS NOTED:

A.That the husband has accepted a smaller capital payout from the wife in return for an agreement from the wife that she will accept the notional payment from him of the sum of $19,000 by way of lump sum child support which represents the husband paying $61.68 per month for the son to the wife until his 18th birthday (142 months from 1 april 2007) and $61.68 per month for the daughter to the wife until the daughter’s 18th birthday (166 months from 1 april 2007), such lump sum amount to be credited against 100% of the husband's liability pursuant to any future relevant administrative assessment of periodic child support for the said children..

B.The parties intend these Order shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3538  of 2005

Ms Southall

Applicant

And

Mr Antoniadis

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of cases in which I have 13 cases fixed for hearing.  Following the callover the parties conferred and resolved all issues in dispute.  This is very much to their credit and that of their professional representatives. 

2. I have had helpfully outlined to me the basis for the adjustment.  Ms Spong has indicated to me, from which Ms Drummond draws no dissent, that the parties cohabited from about December 1997 and married in April 1999.  They fell upon unhappy times and separated in or about mid 2004.  There are two children of their union, a son aged six and a daughter aged four. 

3. The pool of assets for distribution varies according to what value is to be accorded to a particular asset.  There was contest over this, but in the result the resolution reached between the parties was a pragmatic and commercial exercise on their part.  For example, for the wife's part it was suggested that the pool of assets, including superannuation credit funds was about $600,000.  For the husband, it is suggested to be about $650,000. 

4. For the purpose of approving these orders, it matters not for it is an arm's length resolution of parties who had realistic issues for contest, including “add‑backs” following the separation, a contest as to the value of a business and the credit, if any, to be given to the wife's contribution of $50,000 to a superannuation fund. 

5. In the result, it has been explained to me what the percentage differential is between the parties overall arising from the settlement in real terms falls within the range of that which is just and equitable.  I am satisfied with the explanation given to me as to the appropriateness of the orders which also sits seamlessly within the provisions of the section 79(4) and section 75(2) of the Family Law Act 1975 (as amended).

6. There are obligations on judges of this court to be satisfied that orders are just and equitable, notwithstanding that they are made by consent.  Such are the mandates of the Family Law Act itself. I am satisfied, from the very helpful explanation provided by both Ms Spong and Ms Drummond that the orders I am about to make are appropriate. I mark the consent orders Exhibit "A". I make orders in terms of Exhibit “A”.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  27 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SOUTHALL & ANTONIADIS