ATAPATU & HILL

[2015] FamCA 611

FAMILY COURT OF AUSTRALIA

ATAPATU & HILL [2015] FamCA 611

FAMILY LAW – PROPERTY SETTLEMENT – Application for consent orders made out of time – leave granted pursuant to s 44(6) of the Family Law Act 1975 (Cth) to proceed after the standard application period – whether it is just and equitable to make orders in the terms of the minute of consent orders – final orders made in terms of the consent application

Family Law Act 1975 (Cth)

APPLICANT: Mr Atapatu

RESPONDENT: Mr Hill

FILE NUMBER: MLC 5156 of 2015

DATE DELIVERED: 8 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 8 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ieraci

SOLICITOR FOR THE APPLICANT: Nevett Ford

COUNSEL FOR THE RESPONDENT: Ms Macgregor

SOLICITOR FOR THE RESPONDENT: Macgregor Solicitors

Orders

IT IS ORDERED THAT

1. There is leave to the Applicant husband to apply after the standard application period has expired for orders pursuant to s 90SM of the Family Law Act 1975 (Cth).

IT IS FURTHER ORDERED BY CONSENT THAT

1. The Applicant, Ms Atapatu (“the Applicant”) receive by way of property settlement a payment of $550,000 plus 50 per cent of interest accrued from the sale proceeds of the property at B Street, Suburb C, plus 50 per cent of any interest accrued on the sale proceeds of the Country D property (“the payment”) within 60 days of the date of these Orders (“the date”) comprising:

   a.50 per cent of the net proceeds of sale of the property situate at B Street, Suburb C (total net proceeds of sale of $216,166.86 plus 50 per cent of the interest from the invested funds); and

   b.The balance from the net proceeds of sale of the real property at E Street, Suburb F, Country D, plus 50 per cent of any interest accrued on the sale proceeds (“the Country D property”) (total net proceeds of sale estimated to be approximately AUD$512,790).

2. Contemporaneously with the payment:

   a.The Applicant do all such acts and things and sign all such documents as may be required to transfer to the Respondent, at the expense of the Respondent, all of her right, title and interest in the real property situate at and known as G Street, Suburb H in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the Suburb H property”);

   b.The Respondent refinance the mortgage registered number … to the Westpac Bank (“the mortgage”) with respect to the Suburb H property and provide a discharge of mortgage to the Applicant at the settlement at his expense;

   c.The Respondent indemnify the Applicant with respect to all payments and liability pursuant to the mortgage and all rates, taxes and like apportionable outgoings of the Suburb H property as and when they fall due.

3. Pending the payment:

   a.The Respondent have the sole right to occupy the Suburb H property.  During such right of occupation the Respondent pay all instalments pursuant to the mortgage and all rates and taxes and the like apportionable outgoings of the Suburb H property as they fall due;

   b.The parties hold their respective interests in the Suburb H property upon trust pursuant to these Orders;

   c.Neither party encumber the Suburb H property without the consent of the other party;

   d.That liberty be reserved to either party to apply with respect to the terms and conditions of and execution of the sale.

4. In the event that the whole of the payment has not been made by the due date, the Respondent and Applicant forthwith do all acts and things and sign all documents necessary to place the Suburb H property on the market for sale (“the sale”), upon such terms and conditions (including reserve price) as are agreed, and in default of agreement, such terms as shall be nominated by the President (for the time being) of the REIV and the proceeds be applied as follows:

   a.Firstly, to pay all costs, commissions and expenses of the sale;

   b.Secondly, to discharge any encumbrance affecting the Suburb H property;

   c.Thirdly, to deposit into a new joint bank account (“the capital gains tax account”) an amount to pay the capital gains tax as is estimated by the Respondent’s accountant, relating to the sale of the property with the Respondent being liable for all of the capital gains tax as assessed by the Australian Taxation Office;

   d.Fourthly, so much of the payment as is then outstanding, together with interest thereon at the rate prescribed in the Family Law Rules, adjusted monthly from the date, to the Applicant;

   e.Fifthly, the balance to the Respondent.

5. The Applicant and the Respondent forthwith do all acts and things and sign all documents necessary to place the property at E Street, Suburb F, Country D (“the Country D property”) on the market for sale (“the sale”) upon such terms and conditions (including reserve price as agreed and in default of agreement such terms to be nominated by the selling agent and the parties to sign all necessary documentation to accept the offer made on the property of CD409,000 (equivalent to approximate AUD$792,830) and sign all necessary documents to instruct solicitors to act in connection with the sale of the Country D property and the proceeds be applied as follows:

   a.Firstly, to pay all costs, commissions and expenses of the sale;

   b.Secondly, to discharge any encumbrance affecting the Country D property;

   c.Thirdly, the balance to be forwarded to the Applicant’s lawyers, Nevett Ford’s trust account.

6. The sale proceeds of the property at B Street, Suburb C (“the Suburb C property”) be applied as follows:

   (a)Firstly, to pay all costs, commissions and expenses of the sale;

   (b)Secondly, to discharge any encumbrance affecting the Suburb C property;

   (c)Thirdly, to deposit the balance into the trust account of the Applicant’s lawyers, Nevett Ford.

Capital Gains Tax

1. Capital gains tax in respect of the Country D and Suburb C properties is to be paid by the parties as assessed by the Australian Taxation Office.

2. The Applicant retain her interest in the property at I Street, Suburb K, Country L (“the Country L property”) and the Respondent relinquish any claim he may have to the Country L property.

3. The Respondent retain his interest in the property at M Street, Suburb N (“the Suburb N property”), being the whole of the land more particularly described in Certificate of Title Volume … Folio … and the Applicant relinquish any claim she may have to the Suburb N property.

4. Unless otherwise specified in these Orders:

   a.Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date;

   b.Monies standing to the credit of the parties in any bank account are to become the property of the owner of the bank account;

   c.Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;

   d.All insurance policies to become the sole property of the beneficiary named therein;

   e.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;

   f.Any joint tenancy of the parties in any real or personal property be otherwise expressly severed.

5. The parties do all acts and things and execute all such documents reasonably necessary to give effect to these Orders and should either party fail to execute any document within 14 days of there being requested, either party has liberty to apply to a Court of competent jurisdiction with respect to the matter, including but not limited to an Application for a Registrar of the Court to be appointed pursuant to section 106A of the Family Law Act and authorised to sign such documents on behalf of such party.

6. Upon paragraph 1 of these Orders being complied with, the Respondent retain the balance of the sale proceeds of the Suburb C and Country D properties.

IT IS FURTHER ORDERED THAT

1. All extant applications be dismissed and the matter removed from the list awaiting hearing.

NOTATION

A.That pursuant to Section 90ST of the Family Law Act 1975 all financial matters between the parties intend that these Orders shall, as far as practicable, settle all financial matters between them and avoid further proceedings between them. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atapatu & Hill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5156 of 2015

Mr Atapatu

Applicant

And

Mr  Hill

Respondent

REASONS FOR JUDGMENT

1. The application before me in the Judicial Duty List today is the Application for Consent orders filed 9 June 2015, those orders being orders adjusting or altering the parties’ interests in property and finalising their financial relationship.  The parties in this case are the respondent de facto wife, who is currently 43 years of age, and the respondent de facto husband, who is 40 years of age.  They will hereafter for convenience be referred to as the husband and the wife.  The husband is employed as a consultant earning approximately $390,000 per annum and the wife is also employed as a consultant earning approximately $125,000 per annum.  They are both in good health.  The parties commenced co-habitation in December 2002, separating on 1 June 2013.

2. Section 44(5) of the Family Law Act1975 (Cth) (“the Act”) provides that a party to a de facto relationship may apply for an order, in this case, an order pursuant to s 90SM of the Act, for the alteration of property interests only if the application is made within the period of two years after the end of the de facto relationship. That is referred to as the standard application period. Pursuant to s 44(6) of the Act, the Court may grant a party leave to apply after the end of the standard application period if the Court is satisfied that hardship would be caused to the party or a child (which is not relevant in this case) if leave were not granted.

3. The Court is required to consider the reasons for any delay, the prejudice to the other party and the basis of any prima facie case.  None of those matters are of particular relevance in this case other than the reason for the delay, given that these are consent orders and both parties seek to have the Court make those orders.  The delay in this case is a matter of days.  It has been submitted that the parties have been negotiating for some time, that they have had two mediations, that they had reached agreement, but that there were issues with respect to the mechanics of the orders, and I can only assume that the date upon which the standard application period expired was simply overlooked.

4. Hardship is not simply a matter of financial hardship.  Hardship may also be the fact that parties own properties together, they no longer live together, and it is no longer appropriate that they own those properties together. Hardship can also be simply a matter of the parties wanting to bring to an end their financial relationship, and, absent the grant of leave, not being able to do so.  I am satisfied that in all of the circumstances of this case that leave should be granted to the applicant wife to apply, notwithstanding that application is made more than two years after the end of their de facto relationship.

5. I must also be satisfied, having granted leave, that it is just and equitable to make orders.  It is similarly the case that where the parties no longer live together and the financial arrangements they made during that relationship are no longer appropriate once that relationship has come to an end.  I am satisfied, in this case and in those circumstances, that it is just and equitable to make orders.

6. The primary assets in the asset pool are the proceeds of sale of a property in Suburb C.  There is a property in Country D which is in the process of being sold, a property in Suburb H, and the husband has a one-third share with members of his family in a property in Suburb N.  The husband has superannuation entitlements of some $340,000, and the wife has superannuation entitlements of approximately $92,000.  The total value of the assets which are the subject of the proposed orders and the superannuation is approximately $2.3 million.

7. The settlement that is proposed is a division of the property on a 60/40 basis in favour of the husband.  This reflects the property that he brought to the relationship, which included his one-third share in the property in Suburb N, $90,000 that he contributed to the acquisition of the property in Country D and a further $50,000 that he contributed to the acquisition of the property in Suburb C.  I am satisfied that the orders are proper in all of the circumstances of this case, and I will make those orders by consent.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 8 July 2015.

Associate: 

Date:  29 July 2015