Beddoe and Turnley

[2017] FamCA 279

FAMILY COURT OF AUSTRALIA

BEDDOE & TURNLEY [2017] FamCA 279

FAMILY LAW – PROPERTY SETTLEMENT – consent orders – leave granted pursuant to section 44(6) of the Family Law Act 1975 (Cth) – just and equitable division of property

Family Law Act 1975 (Cth) ss 44(5), 44(6)

APPLICANT: Ms Beddoe

RESPONDENT: Mr Turnley

FILE NUMBER: MLC 910 of 2017

DATE DELIVERED: 18 April 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 18 April 2017

REPRESENTATION

AGENT SOLICITOR FOR THE APPLICANT: Mr Douglas

SOLICITOR FOR THE APPLICANT: Anderson Partners

THE RESPONDENT: No Appearance

Orders

1. That within 45 days of the making of these orders (hereinafter “the date”) the Respondent shall do all such acts and things and sign all such documents as may be required to transfer to the Applicant at the expense of the Applicant (hereinafter referred to as “the transfer”) all of his right, title and interest in the real property situated and known as B Street, Suburb C in the State of Victoria and being the whole of the land comprised in title reference Volume … Folio … (hereinafter referred to as “the property”).

2. That contemporaneously with the transfer set out above:

   (a)the Applicant shall refinance the joint mortgage into her sole name and shall indemnify the Respondent against all liability associated with such loan (hereinafter “the refinance”) and the parties shall do all such acts and things and sign all necessary documents so as to give effect to the refinance; and

   (b)the Applicant shall pay to the Respondent the sum of $94,500.

3. That pending completion of the transfer the Applicant shall have the sole use and occupation of the property and she shall make all necessary mortgage payments and pay all apportionable rates, taxes and outgoings with respect to the property of whatsoever nature and kind.

4. That upon completion of the transfer the Applicant shall indemnify the Respondent against all liability and apportionable rates, taxes and outgoings with respect to the property of whatsoever nature and kind.

5. That in default of the refinance or transfer or payment occurring on or before the date the property shall be forthwith sold out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

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

   (b)secondly to discharge the mortgage and any other encumbrance affecting the real property;

   (c)thirdly, whatsoever amount of the payment remains owing to the Respondent together with interest in accordance with the Penalty Interest Rate Act 1983 (Vic); and

   (d)lastly, any balance then remaining to the Applicant.

6. That in accordance with s90MT(1)(b) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the superannuation interest of Ms Beddoe (“the Wife”) in Australian Super (“the Fund”), member number 29746531, Mr Turnley (“the Husband”) will be entitled to be paid an amount of $78,600 of the splittable payment and there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

7. That Order 5 binds the Trustee of the Fund and takes effect from the operative time being the fourth business day after the service of these Orders on the Trustee.

8. Within 14 days of becoming entitled to receive a superannuation benefit from the fund the Wife and Husband will give the Trustee of the Fund:

   (a)All such forms as necessary to enable it to determine the nature and quantum of the Husband’s entitlement; and

   (b)Any other related information reasonable required.

9. That there be liberty to each party and the Trustee of the Fund apply regarding the implementation of these Orders affecting the interests of the Wife and the Husband in the Fund.

10. That other than as otherwise set out in these orders the parties have the sole right title and interest in any other property which is at the date hereof in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.

11. That the Applicant and Respondent do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.

12. That in the event that either party refuses or neglects to execute any deed or instrument, the registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

13. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these 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 the date of these orders;

    (b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

    (c)All insurance policies are to become the sole property of the owner named hereon;

    (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 Applicant and Respondent in any real or personal estate is hereby expressly severed.

NOTATION

A.That the parties agree that as far as it is practicable to do so that the orders are made having regard to the provisions of section 81 of the Family Law Act 1975 with a view to determining for all time the financial relationship between the parties and avoiding further proceedings between them.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 910 of 2017

Ms Beddoe

Applicant

And

Mr Turnley

Respondent

REASONS FOR JUDGMENT

1. Today the matter of Beddoe & Turnley comes before me for mention, having originally been listed before me in the Judicial Duty List on 5 April 2017. Today, what is sought is that leave be granted, pursuant to section 44(6) of the Family Law Act 1975 (“the Act”), to enable the parties to finalise the financial relationship between them by way of final property orders.  The background to that application is as follows. 

2. An application for consent orders was filed on 2 February 2017.  It is a joint application of the parties. 

3. The parties are Ms Beddoe who is aged 51 years.  She is the applicant.  The respondent is Mr Turnley.  He is aged 48 years.

4. The parties have been in a relationship, since June 1995 when they commenced their cohabitation.  Separation occurred in October 2014. 

5. There are two children of the relationship, D who is aged 15, and E who is aged 13 years. 

6. The parties have acquired joint property during the course of the relationship and now seek, as I have already indicated, to finalise their financial relationship. 

7. As to the question of leave, section 44(5) of the Act provides that a party to a de facto relationship may apply for orders under the Act for the alteration of property interests:

   …only if the application is made within the period of 2 years after the end of the de facto relationship.

8. That is referred to as the standard application period. Section 44(6) of the Act provides that:

   The Court may grant the party leave to apply after the end of the standard application period if the Court is satisfied that:

   (a) hardship would be caused to the party or a child if leave were not granted

   …

9. The Court is required to consider the reasons for any delay in making an application, the prejudice to the other party and the basis of any prima facie case.  None of those matters are particularly relevant in this matter, given that the parties seek orders by consent and seek the leave of the Court to have the orders made. 

10. Hardship is not simply a matter of financial hardship.  It may also be the fact that parties own properties together, that they no longer live together and it is no longer appropriate that they own property together.  That is the circumstance that brings this matter before the Court today.  Hardship can also simply be a matter that the parties want to bring to an end their financial relationship and absent the grant of leave by the Court, not being able to do so. 

11. I have before me, in addition to the application for consent orders, an affidavit sworn by the applicant filed on 3 April 2017.  That affidavit indicates the circumstances that the parties found themselves in after their separation.  The applicant deposes as to the parties being in a straightened financial position, such that they were not able to file their application within the standard application period.

12. It also indicates the hardship that would be caused in the event that they were not able to now obtain final orders, it being the circumstance that there is a jointly owned property and it is the intention of the parties that the applicant have the opportunity to pay the respondent a sum so as to separate their interests and requiring a refinancing of the existing mortgage.  Having regard to that evidence, I am satisfied that it is appropriate that leave be granted in this matter.  I am satisfied that it would be a significant hardship to the parties and, as a consequence, to the children of the relationship if leave were not granted.

13. Turning then to the substantive aspects of the financial application before the Court,  again, I am assisted by a letter provided by the applicant’s solicitors dated 4 April 2017 which sets out the history of the parties’ financial relationship.  It provides particulars as to the parties’ acquisition of the jointly owned property in Suburb C, the various contributions that are made by each of the parties, both in a financial sense but also in relation to the contributions made by each of them to the welfare of the family and, in particular, to the children of the relationship.

14. It sets out the particulars of the parties’ income.  Both parties are employed, the applicant having an annual income of approximately $87,000 per annum and the respondent approximately $66,000 per annum.  I am informed, through that letter, that it is agreed that the proposed division of the parties’ assets will have the effect of an adjustment in favour of the applicant of approximately 55 per cent.  That has regard to both income earning capacity but also the fact that the applicant is the primary carer of the two children of the relationship.  It is intended by the parties, and the proposed orders provide for a superannuation split.

15. I have been provided with a confirmation that the proposed orders have been provided to the trustee of the superannuation fund and I am informed that procedural fairness has been afforded to that trustee. 

16. Having regard to all of those circumstances, I am satisfied that the proposed orders, with the amendment as noted and as confirmed as being appropriate in the letter from the applicant’s solicitors dated 5 April 2017, are just and equitable.  I will make orders in the terms of the consent orders and I direct that the applicant’s solicitors engross and file those orders at Court within seven days.

17. By way of housekeeping, the letter that has been provided confirming the consent to the amendment will be marked as an exhibit.  It will be Exhibit B and will be retained on the Court file.  

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 18 April 2017.

Associate: 

Date:  18 April 2017