Arellano & Arellano (No 3)
[2024] FedCFamC1F 690
•23 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arellano & Arellano (No 3) [2024] FedCFamC1F 690
File number(s): MLC 6603 of 2018 Judgment of: JOHNS J Date of judgment: 23 August 2024 Catchwords: FAMILY LAW – PROPERTY – final orders by consent – where the parties have a modest property pool – where the wife has sole care of the children – where the husband pays no child support – where the husband has an acquired brain injury and his interests are represented by a litigation guardian – where each party is to receive a payment – 70/30 split in wife’s favour Legislation: Family Law Act 1975 (Cth) ss 75(2) & 79 Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 23 August 2024 Place: Melbourne Solicitor for the Applicant: Mr Stone, Goldstone Family Lawyers Solicitor for the Respondent: Mr Linehan, Prior Law ORDERS
MLC 6603 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ARELLANO
Applicant
AND: MR ARELLANO
Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
23 AUGUST 2024
BY CONSENT THE COURT ORDERS THAT:
1.The Applicant Wife shall have sole responsibility for making decisions about major long-term issues in relation to the children X born 2007 and Y born 2009.
2.That upon completion of the payment referred to in paragraph 1 of the Order dated 22 July 2024 the said payment be distributed as follows:
(a)$310,000 (three hundred and ten thousand dollars) to the Applicant Wife; and
(b)$50,000 (fifty thousand dollars) to the Respondent Husband.
3.That all funds held for the benefit of the parties by E Law Firm, shall be transferred to the Prior Law Trust account.
4.The funds referred to in paragraph 2(b) and 3 shall be applied as follows:
(a)To pay the costs of the litigation guardian (including counsel and mediator fees) capped in the amount of $25,000; and
(b)Subject to paragraphs 7 or 8, below, the balance to be paid to the Senior Master of the Supreme Court of Victoria or a Victorian Civil and Administrative Tribunal appointed administrator to be held for, and on behalf of the Respondent Husband.
5.That the Applicant Wife be solely entitled to the exclusion of the Respondent Husband to the entirety of the funds held in Westpac account …39.
6.That unless otherwise specified in these orders and save for the purpose 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) in the possession of such party as at the date of these orders;
(b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)insurance policies remain he sole property of the owner named thereon;
(d)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; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
7.If the Senior Master of the Supreme Court of Victoria makes an order under r 79.10(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) that the funds set out in paragraph 2(b) and 3 of these orders be held in Court for the benefit of the Respondent Husband, then the Litigation Guardian shall pay the said funds to the Senior Master for the Respondent Husband.
8.If the Senior Master of the Supreme Court does not make an order pursuant to paragraph 7 herein, then the Litigation Guardian shall apply to the Victorian Civil and Administrative Tribunal to appoint an administrator for the Respondent Husband and the funds in paragraph 2(b) and 3 shall be applied at the direction of the said administrator.
9.That all extant applications be otherwise dismissed.
AND IT IS NOTED:
A.That pursuant to section 81 of the Family Law Act 1975, the parties intend that these Orders shall finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
This matter comes before the Court today upon application by the parties for the making of final orders by consent.
The proceedings have had a long journey through the Court system having commenced their life in 2018.
The background to the dispute is as follows.
The wife, who is the applicant in the proceedings, is aged 40 years and is employed in the service industry. The husband is aged 48 years and is a disability pensioner.
The parties married in 2007 and separated in 2015.
There are two children of the marriage, X, aged 15 years, and Y, aged 16 years. The children both live with the applicant wife. That has been the position since the parties' separation. It is common ground that the wife has been the sole carer of the children since separation some 9 years ago, and further, that she has received no child support in respect of their care since that time.
The parties' property dispute is complicated. That this is so, is as a result of the husband's parents, who were joined as second and third respondents in the proceedings, having an interest in the former matrimonial home occupied by the wife and the children.
The dispute as between the parties and the husband’s parents as to the extent, if any, of their interests in that property was resolved by way of a consent order made by me on 22 July 2024. The effect of those orders was that the second and third respondents were required to pay into a trust account for the benefit of the husband and wife the sum of $360,000, and that they otherwise retain their interest in the former matrimonial home.
Following the making of those orders, the applicant wife and the husband, whose interests are represented in these proceedings by a litigation guardian, Mr D, attended a mediation on 9 August 2024. Both parties were represented by Counsel at that mediation, and the fruits of that mediation are presented to the Court today in the form of a Minute of Consent Order. The effect of the proposed orders is to divide the payment received from the second and third respondents as between the husband and the wife. Paragraph 2 provides for the division of that payment, and further orders are provided for the division of other funds held by them.
I am told that the husband will retain funds held on trust in E Law Firm and that the wife will retain savings held in a Westpac account. The effect of the proposed adjustments is that there will be an approximately 70/30 adjustment of the parties' asset pool, which is valued at approximately $575,000, in favour of the wife. It is submitted, and I accept, that an adjustment in those terms appropriately takes into account the contributions made by each of the parties.
As to the wife, it is contended that her contributions include her actions in pursuing the parties' entitlements as against the second and third respondents by way of joinder of them to these proceedings, which ultimately resulted in the payment by them now sought to be adjusted between the husband and the wife.
In addition, it was submitted that the wife has made significant contributions to the welfare of the family as sole carer of the parties' two children, particularly in circumstances where she has not received child support nor is she ever likely to receive child support from the husband.
The proposed orders make provision for the funds received by the husband to be paid into the Supreme Court, to be managed by the Senior Master of the Supreme Court of Victoria for the benefit of the husband, and if that is not able to be implemented, then the orders further provide for the litigation guardian to apply to the Victorian Civil and Administrative Tribunal for the appointment of an administrator on behalf of the husband. Given the husband's circumstances, he being a disability pensioner as a result of an acquired brain injury, I am entirely satisfied that those are appropriate provisions in the circumstances of this case.
Having regard to the history that I have identified, I am well satisfied that justice and equity requires that I make orders in this matter to enable an adjustment of the parties’ interests. Having regard to the principles set out in s 79 of the Family Law Act 1975 (Cth) (“the Act”), I am satisfied that the proposed adjustment appropriately reflects the contributions made by each of the parties through the course of the relationship and further since their separation. I am also satisfied that the adjustment proposed appropriately has regard to the relevant s 75(2) factors, particularly the circumstances of the wife having the ongoing care of the parties' two children, and the husband being unable to work due to his injuries.
Having been satisfied as to those matters, I will make orders in the terms of the Minute of Order that is provided to the Court and dated this day.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 16 October 2024
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