BINNS & SIMON

[2015] FamCA 975

FAMILY COURT OF AUSTRALIA

BINNS & SIMON [2015] FamCA 975

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: Ms Binns

RESPONDENT: Mr Simon

FILE NUMBER: MLC 7964 of 2015

DATE DELIVERED: 7 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 7 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Barbayannis

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. That pursuant to Section 44(6) of the Family Law Act 1975 (Cth), leave be granted to the parties to apply out of time.

BY CONSENT IT IS ORDERED:

1. That the Applicant retain for her sole use and benefit absolutely all of the proceeds of sale of the property at B Street, Suburb C (Suburb C property) held in trust by D Lawyers, with the proceeds of the sale of the Suburb C property to be paid to Barbayannis Lawyers for and on behalf of the Applicant.

2. That the Respondent has no entitlement whether past, present or future to any personal injury claims that the Applicant may receive from time to time.

3. That the Respondent retain for his sole use and benefit absolutely the following:

   4.1His superannuation interests with One Path;

   4.2His personal bank accounts;

   4.3His motor vehicle; and

   4.4His personal items.

4. That the Applicant retain for her sole use and benefit absolutely the following:

   5.1      The proceeds of sale of the Suburb C property;

   5.2      Her personal effects; and

   5.3      All bank accounts in her name.

5. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   6.1 Each party be solely entitled, to the exclusion of the other party, to all property (including choses-in-action) in the name or possession of the party;

   6.2 Monies standing to the credit of the parties in any joint bank account are to become the property of each party;

   6.3Each party forego any claim or claims he or she may have to any superannuation benefits belonging to or earned by the other party;

   6.4Insurance policies and share portfolios remain the sold property of the owner named therein;

   6.5Each 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 this agreement;

   6.6Each party forego any claims he or she has or may have to any employment related benefits, including but not limited to redundancy/retrenchment payments or entitlements, earned or received by the other;

   6.7Each party be solely responsible for any liability in their own name; and

   6.8Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

6. That if either party refuses to sign any document required to give effect to these Orders, a Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute all deeds and documents in the name of that party and do all acts and things necessary to give validity and operation to all such deeds and documents.

NOTATION:

A. Pursuant to Section 81 of the Family Law Act 1975 (Cth), the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Binns & Simon 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 7964 of 2015

Ms Binns

Applicant

And

Mr Simon

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in a judicial duty list. The parties have filed an application for consent orders seeking that final property orders be made. That application was filed on 24 August 2015. The parties were living in a de facto relationship until June 2013 and, accordingly, are out of time in the filing of that application. Accordingly, the first application made on their behalf today is an application for leave pursuant to s 44(6) of the Family Law Act1975 (Cth) to commence proceedings out of time.

2. The applicant is today represented by her solicitor.  There is no appearance by the respondent, although he has provided to the Court a letter which confirms his consent to the proposed consent orders.  That letter indicates that he is unable to attend Court due to his work commitments in Tasmania.  In addition to the letter of consent from the respondent, I have been provided with a statement of agreed facts signed by the applicant and the respondent.  That document is filed 24 August 2015 and it again confirms the parties’ consent to the orders and details the history of their relationship and the circumstances relied upon in seeking orders in the terms of the signed minute of consent orders. 

3. In the circumstances, I am satisfied that it is appropriate that the application proceed today in the absence of the respondent. 

4. As to the leave application, pursuant to s 44(6), it is submitted on behalf of the parties that hardship would be visited upon them were leave not to be granted. The parties held an interest in a jointly owned property. That property has been sold and they now seek to have the proceeds of sale released so that they can sever their financial relationship.

5. The parties’ separation occurred in June 2013.  It was submitted that they have been negotiating with the assistance of lawyers for some time and have awaited the sale of the property prior to initiating their application to seek final orders.  Having regard to that background, I am satisfied that it is appropriate that leave be granted for the application to be made after the end of the standard application period and I will make an order in those terms.

6. The parties, by way of background, were in a de facto relationship for a period of approximately seven years between 2006 and 2013. 

7. The applicant is aged 46 and the respondent is aged 42 years.  Their interests are modest.  The principal assets of the relationship are the proceeds of sale of the former matrimonial home, which, I am told, are approximately $30,000, and an interest in superannuation held by the respondent valued at approximately $49,500. 

8. The proposed settlement will provide that the respondent retain his superannuation entitlements, which I note were valued at approximately $35,000 at the commencement of the parties’ cohabitation, and that the applicant retain the proceeds of sale of the Suburb C property.  The applicant, I am told, paid the deposit and purchase expenses at the time that that property was acquired by the parties.  It is submitted that the proposed settlement is a pragmatic resolution of the matter.

9. Having regard to the background and having considered the material that has been filed before the Court, particularly the statement of agreed facts, I am satisfied that it is just and equitable that I make orders in the terms of the proposed minute.  The proposed settlement is a practical resolution in what is a very modest pool of assets.  It appropriately reflects the contributions made by each of the parties at the commencement of their relationship and in the acquisition of the Suburb C property.

10. Accordingly, I order that, pursuant to s 44(6) of the Family Law Act1975 (Cth), the parties have leave to apply for final property orders after the end of the standard application period. Further, I will make orders in the terms of the minute of consent orders signed by the parties.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 October 2015.

Associate: 

Date:  7 October 2015