Bowden and Victor

[2017] FamCA 348

FAMILY COURT OF AUSTRALIA

BOWDEN & VICTOR [2017] FamCA 348

FAMILY LAW – PROPERTY – de facto relationship – where the application for consent orders has been filed outside the standard application period – where leave is granted to the applicant to file the application out of time – final property orders made – adjustment of non-superannuation assets 60 percent in favour of the respondent – equalisation of superannuation 

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

APPLICANT: Mr Bowden

RESPONDENT: Ms Victor

FILE NUMBER: MLC 1175 of 2017

DATE DELIVERED: 2 May 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 2 May 2017

REPRESENTATION

SOLICITOR APPEARING FOR THE

APPLICANT:

Mr Bradshaw

SOLICITOR FOR THE APPLICANT: Tolhurst Druce & Emmerson

SOLICITOR APPEARING FOR THE

RESPONDENT:

Mr Babic

SOLICITOR FOR THE RESPONDENT: Rigoli Lawyers

Orders

IT IS ORDERED:

1. That pursuant to Section 44(6) of the Family Law Act leave is granted to the Applicant to file his Application out of time.

BY CONSENT IT IS ORDERED:

1. That the net proceeds of sale of the property situate at and known as B Street, Suburb C be divided in the proportions of:

   (a)forty per centum (40 per cent) thereof to the Applicant;

   (b)sixty per centum (60 per cent) thereof to the Respondent.

2. That pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975 whenever a splitable payment becomes payable in respect of the Applicant’s interest in the D Super Fund (Member No. …) the Respondent is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount at the date of these orders in the sum of $64,883.00 and that there be a corresponding reduction in the entitlement the Applicant would have had in the D Super Fund but for this order.

3. That having been accorded procedural fairness, order 2 hereof binds the Trustee of the D Super Fund to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

4. That order 2 hereof takes effect from the operative time and the operative time is 5 days after the date these orders are made by the Family Court.

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

   (a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) in the possession of such party as at the date of these orders;

   (b)monies standing to the credit of the parties in any joint bank account are to become the property of the Applicant and the Respondent equally;

   (c)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other, save for the adjustment referred to in paragraph 2 hereof;

   (d)insurance policies remain the sole property of the owner named therein;

   (e)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;

   (f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

IT IS DIRECTED:

1. That the Minutes of Consent Orders remain on the Court file.

2. That all property issues be removed from Active Pending Cases List.

THE COURT NOTES:

A.That pursuant to Section 81 of the Family Law Act 1975 the parties intend these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.

B.The Applicant and the Respondent have already each received the sum of $18,254.20 from A2Z Conveyancing Services following the settlement of the sale of B Street, Suburb C

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowden & Victor 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 1175 of 2017

MR BOWDEN

Applicant

And

MS VICTOR

Respondent

REASONS FOR JUDGMENT

1. The matter of Bowden & Victor comes before me today in a Judicial Duty List upon an application for consent orders filed on 9 February 2017. That application has been filed out of time, given that the parties to the relationship separated under the one roof in about 2013. Accordingly, the parties seek leave pursuant to s44(6) of the Family Law Act 1975 (Cth) (“the Act”) to enable a finalisation of their property interests.

2. 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 two years after the de facto relationship has ended. That is referred to as the standard application period.

3. 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 hardship would be caused to the party or to a child if that leave is not granted. 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.

4. In this matter, I am told that the parties, although separated under the one roof, continued to live together in the former matrimonial home until about 2016.  As a result, it was only in the period leading up to the sale of a jointly owned property that the parties turned their mind to the position of what was to occur upon a sale of that property.  That is the explanation for the delay and I am satisfied it is an appropriate explanation.

5. The parties seek orders by consent and seek leave to have the orders made.  In determining whether it is appropriate to grant leave, one must consider the hardship that might be caused to the parties if such leave was refused.

6. Hardship is not simply a matter of financial hardship.  It may also be the fact that the parties own properties together; that they no longer live together and it is no longer appropriate that they own property together.  That is the position in this case as the primary non-superannuation asset is the former matrimonial home which was a property jointly owned by these parties.

7. The background to the proceedings is as follows.  The applicant is Mr Bowden.  He is aged 44 years.  He, when working, has an income of approximately $65,000 per annum, although I am told he is currently in receipt of a disability benefit due to a work-related injury.

8. The respondent is Ms Bowden.  She is aged 50 years.  She has employment and has an income of approximately $35,000 per annum.

9. The parties commenced their cohabitation in 1998 and, as I have already observed, they separated under the one roof in 2013.

10. There are two children of the relationship, E and F, aged 15 and 11, respectively.  It is agreed that those children will continue to live with the mother and spend time with the father. 

11. Having regard to the matters to which I have referred, that is, the fact of the jointly-owned property and the explanation provided with respect to the delay in bringing the application, I am satisfied, firstly, that it is appropriate that leave be granted pursuant to s44(6) of the Act for the application to proceed.

12. As to the proposed adjustment, I am told that the pool is relatively modest.  There is the proceeds of sale of the former matrimonial home and motor vehicles and, otherwise, there is an accumulated superannuation entitlement.  The parties have agreed that it is appropriate to adjust the non-superannuation assets essentially on a 60/40 basis, in favour of the respondent.  That reflects, I am told, the contributions made by each of the parties during the course of the relationship.  That adjustment acknowledges an inheritance that was received by the applicant approximately 10 years ago, that inheritance having been applied to the acquisition, improvement and maintenance of the parties’ interests.

13. The parties have also agreed that it is appropriate that there be an adjustment of the parties’ superannuation interests to provide an equalisation of their respective positions.  The applicant’s solicitor has helpfully filed an affidavit on 9 February 2017, confirming that procedural fairness has been accorded to the trustee of the relevant superannuation fund.  Having regard to all of those matters, I am satisfied that the proposed settlement is just and equitable.  It appropriately reflects the many and varied contributions made by each of the parties during the course of their relationship.  It also takes into account, appropriately, considerations as to the parties’ circumstances looking to the future and particularly the circumstance of the respondent, being primarily responsible for the care of the parties’ two children.

14. Accordingly, I will make orders in the terms of the minute of order that has been filed on behalf of the parties.  The minute will remain on the Court file.  It will be marked with the letter A, and I direct that the solicitors for the applicant engross and file that minute at Court in seven days.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 May 2017.

Associate: 

Date:  2 May 2017