Anton and Malitsa (No. 6)

[2009] FamCA 623

FAMILY COURT OF AUSTRALIA

ANTON & MALITSA (NO. 6) [2009] FamCA 623

FAMILY LAW – CONSENT ORDERS – Just and equitable

Family Law Act 1975 (Cth)

APPLICANT: Mr Anton

RESPONDENT: Ms Malitsa through her Case Guardian Mr T Mulvany

FILE NUMBER: DGF 928 of 2005

DATE DELIVERED: 9 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR STRUM

SOLICITOR FOR THE APPLICANT: TAUSSIG CHERRIE & ASSOCIATES

CASE GUARDIAN FOR THE

RESPONDENT:

MR T MULVANY

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the husband engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 928 of 2005

MR ANTON

Applicant

And

MS MALITSA through her case guardian Mr T Mulvany

Respondent

REASONS FOR JUDGMENT

1. On the last return date at which time this particular case was part heard, I made an order for the appointment of a case guardian for the wife.  I do not propose to revisit that, because the reasons I then made will speak for themselves. 

2. The role of the case guardian is an invidious one in the sense that the person is taking on the decision-making responsibilities of the litigant whilst having to ensure that their own interests do not conflict with those of the litigant.  That means that the case guardian has to make decisions which, are often unpalatable to the individual litigant. 

3. For the protection of both the case guardian and the individual litigant, the matter cannot be finalised until such time as the court actually makes the final order. Section 79(2) of the Family Law Act 1975 (Cth) (“the Act”) says that a court in property settlement proceedings may only make orders if it is satisfied that they are just and equitable. “Just and equitable” is a vague term, but it ultimately means that the orders are fair to both parties. Fairness in any case is determined under s 79 by reference to a number of factors.

4. The major factors are the contributions that each party has made to the various assets, as well as to the marriage generally in a number of different ways and a number of issues that are set out in s 75(2) of the Act. In this particular case, I have had substantial involvement in the case – not only in the pre-trial stage, but also in hearing a number of days of evidence.

5. The husband is 76 years of age and the wife 55.  The husband is retired; the wife’s current financial future is a little bleak, having regard to the episode that she suffered, but I am told that her health is improving.  The husband has remarried in 2006 and, as I understand the evidence, his wife is a person who is a pension recipient. 

6. The two major issues in this particular case were the husband’s greater financial contribution at the commencement of cohabitation and how to treat the property from the wife’s late mother which was received by her after the formal separation. 

7. This is a long marriage, in which there is one child, who is an adult and aged 22 years.  I have previously commended her for her assistance to her mother and, notwithstanding her unhappiness and disenchantment with these orders, it still seems to me that the issues are being addressed properly. 

8. In determining what to do in any particular case, the authorities have set out that a court must follow a four-step process. The first step is to define what the pool is; the second is to assess the contributions and give them weight; the third is to make any adjustments having regard to the factors set out in s 75 of the Act; and the fourth is ultimately to make a decision which is just and equitable.

9. The pool in this case has been defined quite clearly and quite categorically for some time.  The contributions are matters about which there was considerable debate, and I understand the wife has a significantly different view about them to that of the husband.  In this case, I do not have to make any determination, because the parties have reached agreement, notwithstanding the wife may be disenchanted – that agreement comes through the form of the consent of the case guardian.

10. The third step of looking to the future of the parties is also taken out of my hands to a very large degree, because the parties have reached agreement, again, through the case guardian, about how any adjustments should be made. 

11. Ultimately, therefore, the fourth step is the one that has my contemplation, and that is the question of the justice and equity of this particular settlement.  I have the benefit, in this case, of getting most of the evidence before the matter stopped.  I can say without any equivocation that the orders – bearing in mind that I understand there is a loading in the payment for some sort of costs – seem to me to be well within the range of what would have been, probably, the outcome.

12. It is not for me to say that it is a good settlement or a bad settlement – it is just one that is within the range of most likely outcomes.  Importantly, having regard to the costs that each party has incurred, it has a strong ring of commercial reality about it.  In this case, therefore, I am satisfied that they are appropriate orders, and I am satisfied that, in the circumstances, it is just and equitable to make them. 

13. There is a second order sought by the case guardian, which is really nothing to do with the husband.  I propose to make that as an order of the court to give the case guardian an opportunity to have the matter re-listed in the event that there is a problem in relation to costs and disbursements and the future discharge of his appointment.

14. I put on the record that, apart from finding that the orders in this case are just and equitable, the wife, in the fullness of time, may see the benefit that she has received by having Mr Mulvany’s considerable experience and involvement. 

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date:  20 July 2009