Barnaby and Barnaby

[2008] FamCA 760

FAMILY COURT OF AUSTRALIA

BARNABY & BARNABY [2008] FamCA 760

FAMILY LAW –  PROPERTY SETTLEMENT – Just and equitable

Family Law Act 1975 (Cth)

APPLICANT: Mr Barnaby

RESPONDENT: Ms Barnaby

FILE NUMBER: MLC 13406 of 2007

DATE DELIVERED: 25 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 25  August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R.J. Spicer

COUNSEL FOR THE RESPONDENT: In person

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.

3. That my reasons for judgment this day be transcribed and be placed on the file.

4. That there be a transcript of the discussion between the Court and both counsel for the husband and the wife in person this day and that such transcript remain on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13406 of 2007

MR BARNABY

Applicant

And

MS BARNABY

Respondent

REASONS FOR JUDGMENT

1. This is a matter in the judicial duty list, in which the parties are both seeking final orders under s 79 of the Family Law Act 1975 (Cth) (“the Act”). The parties resolved their problems between themselves and presented to the court in February 2008 a set of consent orders which, on reading the file, were later withdrawn; and subsequently a further attempt was made to have the orders made and the registrar declined to do so on the basis that he was not satisfied that the orders were just and equitable within the meaning of the act.

2. Today I have the benefit of having had the orders explained to me in more detail than the registrar had by counsel for the husband.  The wife is unrepresented and has told me and counsel for the husband that she has not only not had legal advice but does not intend to get legal advice.  I have canvassed with her - and the transcript will record - the fact that she understands all of the risks that she is embarking upon, and in particular does not have a sounding board upon which to judge whether or not the community at large would see these orders as just and equitable.

3. This is a marriage of 35 years.  There are adult children.  Sadly, the husband is quite seriously ill, having been diagnosed with Parkinson's Disease some 12 years ago; and whilst that has improved and regressed over those years, it is now at an aggressive stage.  That is not to say that the husband will not endure, let alone live a long life from now, but he will require significant care from a number of people, three of whom are currently paid and the fourth is the wife.

4. The longevity of his life clearly affects one of the issues that was troubling the registrar and certainly was troubling me at first blush; and that was that of the division of the pool of assets.  One of the orders proposed was that the husband pay to the wife $300,000 through his will upon his death.  Obviously no-one would wish any person a shortening of their life, but with Parkinson's Disease it is very difficult to know what might happen and when it might happen, and as such no-one can really say that the $300,000 might even be in existence at the time of the husband’s death.  Having said that, the wife told me that she is quite aware of that risk and is certainly prepared to take it.  

5. Importantly, there are two main properties but also a third which is part of the pool.  The former matrimonial home in Y is a home set up specifically for the needs of the father.  The J property, which is one that the wife is receiving, obviously suits her needs.  In between those, there are a number of other assets that are being divided. 

6. One significant constant in the parties' lives has been their accountant, and both trust him.  He seems to have had a very significant role in determining the outcome of this settlement and will continue to do so by virtue of the orders that I am about to make.  He will charge professionally the husband for many of the things that need to be done, and the husband will hold the wife indemnified in respect of various liabilities.

7. The significant issue that is different from what the registrar was looking at, was simply the $300,000 that I have referred to that the husband is to leave his wife in the will.  When one adjusts that $300,000, albeit it is not being paid at the moment - and as I said earlier, no-one can predict when it is paid.  But if it is paid then the outcome is 42 per cent to the wife and 58 per cent to the husband.  In a long marriage, one might hesitate even at that stage.  But having regard to the very serious illness that the husband suffers and the need that he has for ongoing care for which he will be personally responsible, the outcome is not surprising. 

8. Mr Spicer correctly says that the executors of the estate will be bound by these orders, and that is quite clear from paragraph 11 of the minutes of consent orders that the parties have already signed.

9. It is the function of the court under s 79(2) only to make an order if it really needs to do so to achieve a just and equitable outcome. If the court was to determine what was a just and equitable outcome, it might very well have come to a different conclusion. The wife is aware of that because she says that this is what she wants rather than using some sounding board such as lawyers.

10. It is important that the court carefully examine these sorts of cases, because as I have said to the parties, they could simply go outside of the court and make these orders themselves.  There are no orders here in my view that really require the court's involvement.  There are no implications here that I can see that could not be sorted out between the parties themselves, having little impact upon the settlement.

11. Ultimately, this is a case which has a strong ring of commercial reality about it, and having regard to the very cooperative nature of the parties it seems illogical for me to not do what they want to do.  The wife clearly understands what she is doing.  The husband clearly needs the orders to at least protect the rest of his life as best he can.  It seems to me, notwithstanding the hesitancy of the registrar, which I must say on the papers I would have been in the same position, but having heard what I've heard today and given the appropriate warnings to both parties it seems to me that this is a case in which the court can say that the orders are just and equitable. 

12. Accordingly, in the matter of Barnaby I will make orders in terms of the minutes which I will mark as exhibit A.  I will direct that the exhibit remain on the court file.  I will direct that the solicitor for the husband email to my associate a clean copy of the minute within seven days.  I will direct that my reasons be transcribed.  I will direct also a transcript be obtained and placed on the court file of the discussion between me and both Mr Spicer and the wife.

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: …

Date:  3 September 2008