Boyce & Boyce

[2007] FamCA 1165

FAMILY COURT OF AUSTRALIA

BOYCE & BOYCE [2007] FamCA 1165

FAMILY LAW – PROPERTY – Finalisation of consent orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Boyce

RESPONDENT: Mrs Boyce

FILE NUMBER: MLC 9941 of 2007

DATE DELIVERED: 27 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 27 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr. Turnbull

SOLICITOR FOR THE APPLICANT: Peter Berry

COUNSEL FOR THE RESPONDENT: Mr. Wilkinson

SOLICITOR FOR THE RESPONDENT: David Wilkinson & Co

ORDERS

1. THAT the further hearing of the application to pronounce consent orders as to all property and financial issues be adjourned to the Judicial Duty List at 10.00 a.m. on 1 November 2007.

2. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9941 of 2007

MR BOYCE

Applicant

And

MRS BOYCE  

Respondent

REASONS FOR JUDGMENT

1. In the matter of Boyce, I have before me in the judicial duty list, consent orders on final property and financial issues that the parties seek now to have finalised.

2. Mr Turnbull, solicitor, appears for the husband.  Mr Wilkinson, solicitor, appears for the wife.  Both parties are in court.

3. The original application for consent orders was filed 5 September 2007, and annexed thereto were orders which the parties executed and dated 22 August 2007.

4. The matter came before the Registrar, who declined to make orders.  At that stage there was a letter from Berry Family Lawyers, who then and now act for the husband, highlighting their concern with paragraph 24 of the orders.  Paragraph 24 provides that:

   “A husband shall not have any person reside with him at [the C property], other than the parties' son.  The husband or the child, […], shall not reside at [the M property]”.

5. The child is ten years of age.  These orders would restrict the husband on an ongoing and permanent basis, and additionally I record the existence of a notation, paragraph 31, to the same effect.  I am advised that both parties did consent and remain in agreement with this paragraph.  My suggestion has been that a time clause should be added to paragraph 24, so that the orders operate until the child attains an age agreed by the parties, be it 16, 18 or whatever.  In any event, paragraph 31 should be deleted.

6. There are other difficulties with the orders that have become apparent in discussion with practitioners.  The actual person or the parties jointly responsible for the conduct of sale of the properties in paragraph 1, needs to be more clearly defined, particularly as to reserve price and other matters.

7. Paragraph 9 needs to be withdrawn so that the solicitors act only on the conveyance.  No appropriate notice has been given to the Trustees of the Superannuation Fund and that must be rectified, particularly having regard to orders 14 and 15 thereof.  In any event, the current order provided for in paragraph 25(c), is both incorrect and inconsistent with the outcome which the parties sought to achieve.

8. The practitioners have indicated that they will redraft in a more accurate form the precise orders.  I have indicated to each of them that if the parties fully understand the restrictions that are intended to be imposed upon the husband living in one or other properties, as were formally identified in paragraph 24, that of itself would not prevent me from making these orders, so long as I am wholly satisfied as to the husband's very clear knowledge of these orders.  What should occur in that regard, is that the husband make, file and serve a short affidavit expressing his complete understanding with what is proposed.  In the meantime, the parties need to otherwise correct the orders and give proper notice in respect of superannuation.

9. I propose to adjourn all applications to the judicial duty list on 1 November 2007.  I will have these reasons recorded, placed upon the court file and made available to the parties, and particularly, they will be available to assist whatever judge the matter is before on that day.

10. Subject to the orders being properly drawn, and notice given in respect of superannuation, and the husband filing an appropriate affidavit as to his specific understanding of the corrected orders, I would otherwise accept the request of solicitors for the husband and wife to be excused from attendance on the further hearing date.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

Associate

Date: 3 October 2007