Benenetto and Benenetto (No 3)

[2010] FamCA 858

FAMILY COURT OF AUSTRALIA

BENENETTO & BENENETTO (NO. 3) [2010] FamCA 858

FAMILY LAW – CONSENT ORDERS – Property and spousal maintenance

Family Law Act 1975 (Cth)

APPLICANT: Ms Benenetto

RESPONDENT: Mr Benetto

FILE NUMBER: MLC 2495 of 2009

DATE DELIVERED: 14 September 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 September 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Dunstan, Bowlen Dunstan & Associates Pty

THE RESPONDENT: By letter

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 wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That all exhibits from the hearing on 18 November 2009 be forthwith returned.

4. That the hearing on 13 December 2010 be vacated.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:   MLC 2495 of 2009

MS BENENETTO

Applicant

And

MR BENENETTO

Respondent

REASONS FOR JUDGMENT

1. This matter is before me today on the application of the wife seeking interlocutory orders.  The parties have had both parenting and property issues before the Court for some time.  The parenting issues relating to three children remain unresolved.  The husband has been representing himself for over a year, and I have on the Court file a notice of address for service for him.  He does not attend today but has provided the Court with a letter dated 8 September confirming that he is the husband and that he has consented to the orders for property and spousal maintenance in terms of the minutes which he had also signed.

2. Whilst I do not profess to be a handwriting expert, it is clear from looking at the notice of address for service that the signature is almost identical.  I am satisfied that the husband has consented to the orders being made, including in his absence. 

3. In terms of the financial matters, the pool is modest.  There is a total of $364,000 if one includes superannuation at $50,000 for the husband and $20,000 for the wife.  It is probably difficult to do that on the basis that Mr and Mrs Benenetto still have a long way to go before reaching retirement age.

4. Be that as it may, the only other asset of any substance that they have is the net proceeds of the sale of the former matrimonial home.  After payment out of a debt to a third party, the sum available for distribution between the parties is $254,000 or thereabouts, and they have agreed that the wife will get $230,000 of that and the husband will get about $24,000.  The husband has already had $30,000, which was paid to his previous solicitor, so to that extent, he has a total of $54,000 and the wife, $230,000.

5. The parties each have disparate sums of superannuation and if all of those were added into the pool, the division as proposed would be 70 per cent to the wife and 30 per cent to the husband. It is difficult to do that with the superannuation, but both parties are content for that to occur.  The wife has the responsibility for the three children and pursuant to the existing arrangements, the husband is not seeing them.  The wife is almost entirely responsible for their daily care.

6. The wife earns $15,000 plus Centrelink benefits, and the husband, as I recall, was involved in a business with the third party.  I am satisfied that the outcome, having regard to the very modest pool of assets, is well within the range of possible outcomes.  It has a distinct commercial reality about it, having regard to what the parties have as problems between them in relation to the children's issues.  Property will be one issue out of the way and the parties can start to think about the parenting issues.

7. I had previously allocated a date on 13 December for a review of the Registrar's decision.  That will no longer be necessary because it only related to spousal maintenance orders, and the first minute of the orders provides for a discharge of all previous spousal maintenance orders as well as costs orders. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate: 

Date:  28 September 2010