Birchmore and Grantham

[2011] FamCA 841

FAMILY COURT OF AUSTRALIA

BIRCHMORE & GRANTHAM [2011] FamCA 841

FAMILY LAW – PROPERTY

APPLICANT: Ms Birchmore

RESPONDENT: NSW Trustee and Guardian on behalf of Mr Grantham

FILE NUMBER: SYC 6258 of 2010

DATE DELIVERED: 25 October 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 25 October 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Vizzone Ruggero & Associates

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: York Family Law

Orders 

(Orders made 25.10.2011)

1. Leave granted to the Trustee to make an application for dispensation of rule 16.13(1)(d) Family Law Rules.

2. An order be made pursuant to s 78 in terms of paragraph 1 of Exhibit 5.

3. Orders be made pursuant to s 79 in accordance with paragraphs 2, 3, 4, 5, 6 and 10 of Exhibit 5.

4. Orders be made in accordance with paragraphs 7, 8, 9, 11 and 12 of Exhibit 5.  I note the matters contained in paragraphs A and B of Exhibit 5. 

Exhibit 5

NOTATIONS:

A.The Applicant agrees that the settlement as contained herein includes all of her claim in relation to all contributions made by her by way of financial, non-financial, homemaker and parenting contributions as well as any care that she may have provided to the Respondent following his motor vehicle accident in … 2003 as well as all contributions that she has made post separation together with the relevant factors in Section 75(2) of the Family Law Act.

B.The Applicant further agrees that the settlement contained herein is in full and final claim that she may have or had in relation to any past care (GvK claim) against the Respondent.

BY CONSENT IT IS ORDERED:

1. That pursuant to Section 78 of the Family Law Act it be declared that the Applicant has already received the sum of $100,000 by way of partial property settlement.

2. That by way of final property settlement the Respondent pay to the Applicant the sum of $200,000 payable as follows:

   (a)within 7 days from the date of these Orders the sum of $15,000 with such payment to be made payable to Vizzone Ruggero & Associates Trust Account; and

   (b)within 28 days form the date of these Orders, the sum of $185,000 with such payment to be made payable to Ms Birchmore.

3. That Order 10 of the Orders made on 23 June 2011 as varied by the Orders of 20 October 2011 be discharged.

4. That Order 12 of the Orders made on 23 June 2011 be discharged.

5. That the Applicant be entitled to her superannuation interests to the exclusion of the Respondent.

6. That the Respondent be entitled to his superannuation interests to the exclusion of the Applicant.

7. That the Applicant's Application for departure from child support/application under s.138A of the Child Support (Assessment) Act be dismissed.

8. That each of the Parties pay their own costs of and incidental to these proceedings.

9. That all previous costs orders made or reserved in this Court or the Federal Magistrates Court be and are hereby discharged.

10. That other than as herein provided the Applicant and the Respondent each be declared the sole legal and beneficial owners of all other items of property presently in their respective possession or control including but not limited to money, shares, superannuation, motor vehicles, furniture, furnishings and personal effects.

11. That pursuant to Section 81 of the Family Law Act 1975 the Parties intend these Orders shall finally determine their financial relationship and avoid further proceedings between them in relation to property settlement and spouse maintenance.

12. That in default of the parties or either of them doing all acts and things and executing all such documents as necessary to give effect to these Orders, a Registrar of the Family Court of Australia at Sydney be appointed pursuant to s.106A to execute all documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said Orders.  In giving effect to this Order it is sufficient for the Registrar to proceed with and make Orders on the basis of the sworn Affidavit evidence of the party seeking to invoke this Order and that the party in default will pay the costs of the other party on an indemnity basis.

IT IS NOTED that publication of this judgment under the pseudonym Birchmore & Grantham 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 SYDNEY

FILE NUMBER: SYC 6258 of 2010

Ms Birchmore

Applicant

And

Mr Grantham

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I note that I have read the affidavit of Ms B sworn 25 February 2011 which affidavit indicates that NSW Trustee and Guardian consents to being Mr Gibbon’s case guardian.  

2. On 2 September 2010 an order was made by the Guardianship Tribunal which meant that the NSW Trustee and Guardian was “a manager of the affairs of a party” under the Family Law Rules.  I also note that the trustee filed a Notice of Address for Service on 14 April 2011.  Consequently, as at 14 April 2011 the trustee had satisfied the requirements of Rule 6.10(2) and consequently is taken to be appointed as the case guardian of Mr Grantham. 

3. I note that the order made on 2 September 2010 has been reviewed by the Tribunal within 12 months of that date and extended.  

4. I mark the document entitled “Effects of Settlement Reached” as Exhibit 1.  I grant the Trustee leave to make an application for dispensation of rule 16.13(1)(d) Family Law Rules on the basis that the Trustee has filed the following evidence:

   4.1.An affidavit of Ms C filed 11 October 2011.  The affidavit of Ms C provides the evidentiary basis for items 9 and 18 in Exhibit 1 (see paragraphs 17 and 18).

   4.2.A financial statement by Mr D filed 11 October 2011.  The financial statement of Mr D provides evidence of the values in the following items on the balance sheet and the following items in the financial statement:

   4.2.1.Item 1 on the balance sheet is at paragraph 37;

   4.2.2.Item 2 on the balance sheet is on paragraph 38;

   4.2.3.Item 4 on the balance sheet is in paragraph 40;

   4.2.4.Items 21 and 22 on the balance sheet is in paragraph 46.

5. Counsel for the Trustee next relied upon the mother’s financial statement.  The mother’s financial statement asserts in relation to her interest in E Street, Suburb E that the value of that property is $231,000.  The husband asserts that it is $400,000.  That assertion is in the wife’s favour, not the husband’s.  If the matter had gone to trial, that controversy would probably have been settled by a single expert, Mr F, providing an updated valuation which is not available.  However, I am being asked to assess the settlement based upon the husband’s asserts as to the value of Suburb E. 

6. The wife’s financial statement also sets out what she says about her Commonwealth visa debt which in this document is $10,054.  It has been put on the balance sheet at $9,259.  The wife asserts her Mastercard was $6,009.  It has been put on the balance sheet at $4,097.  Nothing will turn on those differences. 

7. It is an agreed fact in these proceedings that the Trustee has complied with the order of Justice Ryan made on 23 June 2011 for the payment of $100,000 to the wife (see item 10). 

8. I note that item 11 in Exhibit 1 was the subject of oral evidence by Mr G, the lawyer for the Trustee. 

9. I note that the Trustee relies upon:

   9.1.Affidavit of Dr H filed 11 October 2011. 

   9.2.Affidavit of Dr I filed 11 October 2011.

   9.3.Affidavit of Ms J filed 11 October 2011.

   9.4.Affidavits filed by Mr Grantham filed 11 October 2011.

   9.5.Affidavit filed Jeanette Grantham filed 11 October 2011.

   9.6.Two affidavits of Ms K, one filed 11 October 2011 and one filed in court today.  I note the second affidavit of Ms K indicates that if no money is paid to Ms Birchmore under the property application, the child support is increased to $270 per week and the money would last Mr Grantham about 14.5 years. 

10. I mark as Exhibit 2 a letter from Ms K to the wife’s lawyer which indicates that if $127,000 was paid to the wife today that period of time would reduce from 14.5 years to 13.85 years.  I note counsel for the Trustee estimates that if $200,000 was paid it would reduce to about 13 years. 

11. I mark the document that has been tendered from the Guardianship Tribunal Exhibit 3 and I mark the page that has been tendered from the joint advice on settlement which sets out, at its highest, the past economic loss that the mother could make a Griffiths v Kerkemeyer (1977) 139 CLR 161 claim to $350,000, as Exhibit 4.

12. I mark the terms of settlement that have been agreed upon between the wife and the husband’s case guardian as Exhibit 5. 

13. In this matter I am satisfied that based on the evidence that has been tendered, Exhibit 1 accurately represents the assets and liabilities, including superannuation that need to be adjusted between the parties.  I am satisfied that the division between the parties is in the order of 78 per cent of the net assets, including superannuation to the husband and 22 per cent to the wife. 

14. The financial history of the parties’ co-habitation is provided in the documents that I have been given.

15. The background to the acquisition of the cash that is represented in items 1, 2, 10, 12 and 20 in Exhibit 1 is adequately set out in the documents that I have been provided.  I have information about the parties’ future needs.  In particular, the requirements of husband.  I take into account the evidence that has been given by consent by the husband’s mother today. 

16. This is, indeed, a tragic case and a judge at final hearing who was asked to work out what percentage split should be made of the net assets that are here, in my view, could easily decide on the split that the parties have agreed upon as being well within the range of possible results which could be considered a just and equitable outcome.

17. I take into account the fact that by this settlement, considerable legal fees will be saved as well and they would otherwise be legal fees which would diminish the pool of assets and almost inevitably diminish the amount of money that the husband has available from today onwards to look after himself.  In all the circumstances and based on all the evidence that has been presented I am satisfied that the trustee, who is the case guardian of the husband pursuant to the rules and the wife have reached an agreement to divide their net assets, which represents a just and equitable division.

I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 25 October 2011.

Associate:

Date:  2.11.2011