Brennan & Brennan

[2009] FamCA 416

FAMILY COURT OF AUSTRALIA

BRENNAN & BRENNAN [2009] FamCA 416

FAMILY LAW – CONSENT ORDERS

APPLICANT: Mr Brennan

RESPONDENT: Ms Brennan

FILE NUMBER: DGC 3319 of 2008

DATE DELIVERED: 21 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Simon Parsons & Co

SOLICITOR FOR THE RESPONDENT: Julie Taylor

Orders by consent

1. That on or before the 19th day of April, 2009, the husband sign all documents and do all acts and things necessary to transfer to the wife at the expense of the wife all of his right, title and interest in the real property situate at and known as M, being the whole of the land more particularly described in Certificate of title Volume … Folio … ("the real property").

2. That contemporaneously with the transfer of the real property aforesaid:-

   2.1the wife will refinance the Viridian line of credit to the Commonwealth Bank encumbering the real property in the amount of $42,000-00 into her sole name, so as to exonerate the husband from all contractual liability therefor;

   2.2the husband will refinance the liability of the parties pursuant to the MECU personal loan, so as to exonerate the wife from all contractual liability therefor;

   2.3the husband will reimburse to the wife the amount required to reduce the Viridian line of credit to the outstanding sum of $42,000-00.

3. That pending the transfer of the real property:-

   3.1the wife will have the sole right to occupy the real property;

   3.2the wife will pay any fixed repayments required in respect to payment of the Viridian line of credit;

   3.3the husband will not draw down on the Viridian line of credit, save that direct debits may remain in place until the 3rd day of March, 2009 subject to the husband reimbursing the wife for same pursuant to Clause 2.3 hereof.

4. Pursuant to Section 90MT(4) of the Family Law Act 1975 the base amount allocated to the wife out of the interest held by the husband in the Emergency Services Superannuation Scheme ("the fund") is $90,000-00.

5. That pursuant to Section 90MT(1)(a) of the Family Law Act 1975 whenever the Trustee of Emergency Services Superannuation Scheme ("the Trustee") makes a splittable payment from the interest held by the husband, the Trustee:

   5.1Pay the wife, or her legal personal representative the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation)  Regulations 2001, the base amount of $90,000-00 (provided that such base amount shall not exceed the value of the interest determined under Section 90MT(2); and

   5.2Make a corresponding reduction in the entitlement the husband would have had in the fund, but for these orders.

6. That Order 5 has effect from the operative time.

7. That the operative time for these Orders is the beginning of the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee.

8. If, as a result of termination of his employment, the husband becomes entitled to a benefit prior to the Trustee making a payment under Section 59AC of the State Superannuation Act 1998, he shall provide to the Trustee all such forms as shall be necessary to enable the Trustee to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require, within seven (7) days of that entitlement arising.

9. That following the action taken by the Trustee of the Fund as contemplated in Rule 14F(2)(a) and Rule 14F(2)(b) of the Family Law (Superannuation) Regulations 2001 the provisions of Rule 14 of the Family Law (Superannuation) Regulations 2001, will make any splittable payments following that action by the Trustee non-splittable.

10. That until the happening of any of the following (whichever is the earlier):

    10.1The creation of a new interest in the fund, transfer or roll-over into another superannuation fund, of the payment split created by Order 5; or

    10.2The wife satisfies a condition of release in accordance with Schedule 1 of the Superannuation Industry (Supervision) Regulations 1994, and is paid the payment split created by Order 5;

    the husband be and is hereby restrained by himself, his servants and agents from executing a binding death benefit nomination in favour of any person other  the wife or from doing any such act or thing which would render any part of his interest in the Fund a non-splittable payment within the meaning of Rules 12 and 13 of the Family Law (Superannuation) Regulations 2001.

11. That the solicitor for the wife serve a sealed copy of these Orders on the Trustee of the Fund within fourteen days from the making of these Orders.

12. That there be liberty to apply to each party and the Trustee in relation to the implementation of the orders affecting the superannuation interest.

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

    (a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the wife).

    (b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other, save for as otherwise provided herein;

    (c)insurance policies remain the sole property of the owner named therein.

    (d)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.

    (e)any joint tenancy in any real or personal property is hereby expressly severed.

    (f)these Orders shall bind the heirs, executors, administrators and assigns of the husband and the wife.

14. That the application of the husband filed on the 15th day of December, 2008 and of the wife filed on the 1st day of February, 2009 in so far as they relate to financial matters, be otherwise dismissed and removed from the Pending Cases List.

15. That pursuant to Order 38 Rule 26 of the Family Law Rules this matter is one proper for the attendance of Counsel.

THE COURT NOTES:-

AThat the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

B.That the Trustee of the Fund has been accorded procedural fairness by service of these Orders and has indicated no objection to the making of the Orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3319 of 2008

MR BRENNAN

Applicant

And

MS BRENNAN

Respondent

REASONS FOR JUDGMENT

1. This is a matter transferred to me in Chambers by a Registrar after the parties and their lawyers attended the Court and reached a compromise in respect of financial matters.

2. I have been asked to make these final orders.

3. There is some disparity about the pool of assets for division but that is modest.  On the material, the parties have few assets and the parties agree about the division.

4. I have read the file documents made available to me and whilst each party has a different approach to the assessment of their contributions, the difference is not large.

5. The parties were married in August 1979 and separated on 1 November 2001.  There are no children of the marriage who are under 18 years.

6. The adjustment between the parties which was agreed upon at a conciliation conference, apparently takes into account their respective contributions and the factors set out in s75(2) of the Family Law Act 1975.

7. Both parties have been represented by lawyers who have prepared the documents before me and requested they be made.

8. In all of the circumstances, I am satisfied that these orders are just and equitable.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  21 May 2009