Allan and Allan (No. 2)

[2008] FamCA 233

FAMILY COURT OF AUSTRALIA

ALLAN & ALLAN (NO. 2) [2008] FamCA 233

FAMILY LAW – PROPERTY – Final orders made

Family Law Act 1975 (Cth)

APPLICANT: Mr Allan

RESPONDENT: Mrs Allan

FILE NUMBER: MLC 1190 of 2008

DATE DELIVERED: 7 MARCH 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 7 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR McLEOD

SOLICITOR FOR THE RESPONDENT: PHILLIPS & WILKINS

Orders

BY CONSENT IT IS FURTHER ORDERED:

PROPERTY

1. (a) THAT this is an order to which section 77A of the Family law Act 1975 applies.

   (b)the amount of $50,000.00 per annum of the annual payment monies commencing 7 March 2009 ordered to be paid to the Wife or of the value of the property to be transferred to the Wife is attributable to the provision of maintenance for the Wife.

2. THAT the Husband pay to the Wife the sum of $460,000.00 (“the payment”) on or before 14 March 2008 (“the date”) (“the first payment”) and a capital sum of $110,000.00 adjusted annually by the CPI (City of Melbourne) and compounding and paid on 7 March 2009 each year thereafter for ten (10) years (“the annual payments”).

3. THAT in the event that any of the payments have not been made by the respective due dates then the Husband sign all documents and do all things necessary to transfer to the Wife (the real property to be defined as 6 S Street or any of 1 S Street, 2 S Street, 1 E Street and or 2 E Street or any other property owned by the Husband sufficient to secure the payments then outstanding) to be held on trust for sale (“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 said trust transfer and) the sale;

   (b)secondly to discharge the mortgage and any other encumbrance affecting the real property (or properties);

   (c)thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 11.5 per centum per annum adjusted monthly from the date to the Wife;

   (d)fourthly the balance to the Husband;

4. THAT there be liberty apply as to the terms and conditions of the sale.

5. THAT pending the payment or completion of the sale, the parties hold their respective interests in the real property upon trust pursuant to these orders.

6. THAT the Husband forthwith do all necessary acts and things and sign all necessary documents to transfer to the Wife at the expense of the Wife forthwith all his right, title and interest in the Honda CRV registration …, and the Wife forthwith do all acts and things and sign all necessary documents to transfer to the Husband at the expense of the Husband and her right, title and interest in the Mitsubishi Lancer registration ….

7. THAT each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders.

   (a)monies standing to the credit of the parties in any joint bank account are to become the property of the Husband.

   (b)each party retain their superannuation benefits.

   (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.

8. THAT the applications of the Wife filed on the 11^th day of February 2008 be otherwise dismissed.

   IT IS CERTIFIED

9. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

10. THAT all property/maintenance issues be removed from the Pending Cases List.

THE COURT NOTES:

A.THAT 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.

B.THAT nothing in these orders is to be read as a Child Support payment or agreement.

C.THAT by no later than 7 February each year the wife’s solicitors notify the Husband as to the capital sum required to be paid pursuant to the Orders of 7 March 2008.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1190 of 2008

MR ALLAN

Applicant

And

MRS ALLAN

Respondent

REASONS FOR JUDGMENT

1. This is the second extempore judgment delivered this day in the matter of Allan.  Mr McLeod remains as counsel for the wife, the husband appears in person.  Since delivering my earlier reasons and rejecting the consent orders that were initially before the court, the parties have now negotiated an updated and final settlement of property.  The essence of the original agreement before the court is a lump sum payment of $460,000 to be made within seven days by the husband to the wife.

2. Additionally, there is now to be an ongoing payment of $110,000 per annum adjusted by the consumer price index for City of Melbourne and compounding, and that sum is to be paid on 7 March 2009 and in each calendar year thereafter until the year 2018.  That is, ten payments to be made of the adjusted compounded lump sum and the money is to be paid as a lump sum, otherwise the wife retains her personal possessions, furniture, chattels and the like and the motor vehicle.  The provisions to ensure payment are provided for in the orders, and in default of payment interest will apply at a rate of 11 per cent per annum on an adjusted monthly basis and otherwise properties can be sold as are identified to facilitate the payment of such a capital sum(s) as would be required to pay out those annual adjusted payments to the wife.

3. The wife through her counsel has advised the court that she accepts the property valuations.  She accepts the liabilities as disclosed by the husband and does not seek any time herself to engage independent valuers or accountants.  She has had every opportunity to reflect upon her financial circumstances and engage such experts.  I am satisfied that she has knowingly and on an informed basis declined to obtain such additional professional assistance which would no doubt have been at some very real cost to her.  I am satisfied the wife has had appropriate legal advice, has considered the matters in the amended consent orders and provides an informed consent.  In any event the wife is in court and can hear what I have now said.

4. Within the umbrella of section 79(2) of the Family Law Act the court must conclude that a property settlement is just and equitable. I am conscious of all matters raised in my earlier reasons for judgment. The current order is far more appropriate to the wife in that it provides her an ongoing adjusted lump sum which is a capital payment which does not represent any capitalised spousal maintenance and which permits her to derive her own proper income. Child support is entirely separate and in no way do these orders negate the husband's primary financial responsibility for the care, welfare and financial support and upbringing and education of his children.

5. The parties have not sought any children or parenting orders and that is a matter for them.  These orders only deal with property, and on the adjusted basis of the payment and particularly relying on the informed consent of the wife and her acceptance of these orders, and the commitment of the husband to pay, and the financial and injunctive security of sale of properties if he does not pay, then I will give the acknowledgment of the court to the finality and to the fact that orders are now within the ambit of being just and equitable.

6. I will have these reasons transcribed, placed upon the court file and made available to all parties.  I will have the wife's solicitor carefully engross all orders and when passed by the husband for his informed agreement they then must be sent by email to my associate within seven days.

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

………………………………………………………..
Associate:  Annette King
Date: 11 April 2008