Stracciatelle and Brugini

[2011] FamCA 782

FAMILY COURT OF AUSTRALIA

STRACCIATELLE & BRUGINI [2011] FamCA 782

FAMILY LAW – PROPERTY SETTLEMENT - Financial agreements - Parties consent to setting aside of binding financial agreement under s 90J

Family Law Act 1975 (Cth)

APPLICANT: Mr Stracciatelle

RESPONDENT: Ms Brugini

FILE NUMBER: MLC 9517 of 2010

DATE DELIVERED: 10 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Kent J

HEARING DATE: 10 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Pannifex

SOLICITOR FOR THE APPLICANT: Carew Counsel Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Stewart

SOLICITOR FOR THE RESPONDENT: Kennedy Partners

Orders

1. That within 90 days of the date of the making of this order (“the date”), the husband pay to the wife the sum of $375,000.00 (“the payment”).

2. That contemporaneously with the payment, the wife do all such acts and things and sign all such documents as may be necessary to provide to the husband a withdrawal of caveat no. … registered against the title of the property situate at and known as B Street, Suburb C in the State of Victoria (“B Street”).

3. That in default of the husband making the payment by the due date, the husband pay penalty interest to the wife at the rate prescribed by the Family Law Rules 2004 and the husband do all such acts and things and sign all such documents as may be necessary to sell, upon such terms and conditions as may be agreed upon between the parties, B Street, and the proceeds of the said sale be applied in the following order:

   (a)       In payment of all costs, commissions and expenses of and incidental to      the said sale;

   (b)       To discharge the loan to Westpac Banking Corporation in the sum of           $177,000.00 (approximately) registered against the title of B           Street;

   (c)       So much of the payment as remains outstanding to the wife together            with penalty interest accrued thereon; and

   (d)       The balance to the husband.

4. Unless otherwise specified in these orders and save for the purposes of enforcing the payment of 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 and superannuation benefits) in the       possession of such party as at the date of this order;

   (b)       Any monies standing to the credit of the parties in any joint bank     account are to become the property of the husband and the parties do all        such acts and things and sign all such documents as may be necessary to          close any such joint bank account;

   (c)       All insurance parties owned by the parties shall remain the sole property    of the owner named thereon;

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

5. All extant applications be dismissed.

6. Certify for counsel.

Notation

The Court notes the parties intend these orders shall as far as practicable finally determine the financial and other relationships between them and avoid further proceedings between them.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9517 of 2010

Mr Stracciatelle

Applicant

And

Ms Brugini

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In circumstances where I am informed from the bar table on behalf of the parties that the subject financial agreement has been terminated by the parties within the meaning of s 90J, I am provided with Minutes of Consent Orders that have been signed by the parties. Again I am informed from the bar table that this represents a division of, in broad terms, 75 per cent/25 per cent in favour of the Husband. I make the Consent Orders that have been signed by the parties and are now initialled by me and placed with the file.

2. I am content to conclude that those Orders are just and equitable, having regard to the background to the dispute between the parties, in particular the fact that the Husband for his part sought enforcement of the financial agreement and the Wife, for her part, sought to have the agreement set aside on various grounds. The outcome of that dispute, in and of itself, could not be easily predicted, and would come at a significant cost to the parties in terms of reaching a conclusion of that even at trial level, let alone any ensuing appeal. On that basis, I am satisfied in any event that the Consent Orders reflect a just and equitable outcome, and as I have mentioned, I make those Orders.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 10 October 2011.

Associate: 

Date:  11 October 2011