Baker and Tanner

[2011] FamCA 1088

FAMILY COURT OF AUSTRALIA

BAKER & TANNER [2011] FamCA 1088

FAMILY LAW – PROPERTY – Consent Orders – Where Court is satisfied that just and equitable in the circumstances to do so

Family Law Act 1975 (Cth)

APPLICANT:	Mr Baker
RESPONDENT:	Ms Tanner

FILE NUMBER: CSC 205 of 2012

DATE DELIVERED: 5 October 2011

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 5 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Williams Graham Carman Solicitors

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: O’Reilly Stevens Bovey Lawyers

Orders

1. BY CONSENT orders be made in accordance with the minute of consent order signed by or on behalf of the parties, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

2. This matter be removed from the list of cases requiring determination.

3. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

4. All outstanding applications be dismissed.

   IT IS CERTIFIED

5. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Exhibit “1”

1. That within forty two (42) days of the date of this Order:

   a.The Applicant must:

   i.Pay to the Respondent the sum of one hundred and ninety thousand dollars ($190,000.00) into the Respondent’s solicitors Trust Account;

   ii.Do all things and acts and sign all documents necessary to cause the Respondent to be released from, and indemnify the Respondent against any liability in respect of, the Bendigo Bank Mortgage Loan Account No. … and will refinance the liability into his sole name; and

iii.indemnify the Respondent against any liability she may have in respect of, or arising from, or in relation to the Baker Family Trust (“the Trust”) including but not limited to her income tax liability for income received by her as a beneficiary from the Trust in the financial year ended 30 June 2012.

b.The Respondent must do all acts and things and sign all documents necessary to:

i.Transfer to the Applicant all her right, title and interest in:

1.The property known as B Street, C Town in Queensland and described as Lot … on Sealed Plan …, County of D, Parish of E, Title Reference … (“the B Street property”); and

2.The Water Allocation No. …, … and … on Crown Plan …, Title References …, … and … (collectively referred to as “the Water Allocations”);

ii.Relinquish any interest she may have in the Baker Family Trust (“the Trust”) including as appointor, settlor, trustee, shareholder or office-bearer in any trustee company or as beneficiary of the trust.

1. That on or before 30 June 2013 the Applicant must pay to the Respondent the further sum of ten thousand dollars ($10,000.00) by way of transfer into the Bendigo Bank account in the name of Ms Tanner and with the BSB Number … and Account Number ...

1. That unless this Order provides to the contrary:

a.All documents necessary to transfer any property (real or otherwise) to give effect to any transaction pursuant to the terms of this Order be prepared by the party receiving such property or the benefit of such transaction;

b.That the party receiving any property or the benefit of any such transaction be responsible for payment of taxation, stamp duty, registration fees, legal costs and outlays in relation to effecting the transfer of any property or the receipt of any benefit of such a transaction pursuant to the terms of this Order;

c.That each party mutually release the other in respect of any and all actions, claims, suits, demands and debts as and against the other.

1. That unless specified in this Order and except for the purpose of enforcing the payment of any money due under this or any subsequent 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.Money standing to the credit or debit of the parties in any bank account is to become the property of the person named as the owner of the bank account:

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

d.All insurance policies shall become the sole property of the owner named there under;

e.Each party shall 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 upon receipt of that property by the recipient pursuant to this Order.

1. That each party have liberty to apply back to the Court in relation to the interpretation of the terms of these Orders upon giving of seven (7) days notice to the other party.

1. In the event that either party fails, refuses or neglects to execute (within fourteen (14) days of a request to do so) any documents or do anything necessary to give effect to the terms of these Orders, then pursuant to Section 106A of the Family Law Act 1975 as amended:

a.The Registrar or manager of the Family Court of Australia at Cairns shall be and is hereby appointed to execute any deed or instrument in the name of the defaulting party and to do all such acts and things necessary to give validity to the operation of the deed or instrument and to give validity and operation to these Orders;  and

b.The Affidavit of the solicitor for the party seeking to give effect to these Orders shall be sufficient proof of the default of the other party.

1. That each party bear their own costs of and incidental to the making of this application.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baker & Tanner 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 HOBART

FILE NUMBER: CSC205/2012

Mr Baker

Applicant

And

Ms Tanner

Respondent

REASONS FOR JUDGMENT

1. These are property proceedings commenced in Cairns in April 2012 by Mr Baker, (‘the husband’), seeking an adjustment of property in relation to his wife Ms Tanner (‘the wife’).

2. At the time of filing the application the husband’s mother, Ms Baker, sought to be appointed case guardian having regard to concerns about the husband’s mental health and noting that she and her husband had been appointed administrators for the husband’s affairs.

3. An order was made to that effect on 23 May 2012 but with the provision that any consent orders ought to be subject to confirmation that the husband knew of the proceedings.

4. A joint submission was made to me in chambers on 19 September 2012 by the solicitors for the husband and wife that consent property orders ought to be made.

5. Following a direction by me an affidavit was filed by the case guardian informing me that the husband’s health has improved and that he was aware of, and participated in, the negotiations for settlement.

6. The parties commenced cohabitation in 2002 and separated in March 2011.  The husband is aged 33 and the wife is aged 31.  They have two children age 7 and 10 who live with the wife and spend alternate weekends and other times with the husband.

7. The husband asserted that the pool of assets (including add backs) created property to the value of $865,790.  The wife asserted that the property had a value of $749,867.

8. The parties agreed that almost all of the financial contributions were made by the husband or his parents, and that significant non-financial contributions were made by the wife during the relationship, and post separation.

9. It was further an agreed fact that no notable non-financial contributions were made by the husband’s parents and in terms of the s75(2) factors the wife had the care of the two children.

10. The husband has a low earning capacity and need for ongoing care following a cardiac arrest suffered shortly prior to separation which caused a subsequent partial loss of vision, balance and co-ordination.

11. The possibility is that the husband will recover further and may receive compensation as a result of a medical negligence action which is in its infancy.

12. The parties have agreed that the husband will pay to the wife the sum of $200,000.  The wife will transfer to the husband her interest in the jointly owned farm house and water allocation as well as interest she has in the family trust. 

13. On the husband’s position that is a division of property as between 65 per cent to the husband and 35 per cent to the wife.

14. On the wife’s position the division is 68 per cent to the husband and 32 per cent to the wife.  The solicitors for each of the parties assert, in all of the circumstances, that the division of property, in all of the circumstances, is within the discretionary range of a Judge exercising jurisdiction under the Family Law Act 1975 (Cth).

15. I accept their joint submissions in that regard and I make orders in accordance with the minute of order.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 5 October 2012.

Associate:     G Doyle

Date:              5 October 2012