Anton and Malitsa (No. 6)

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…