Brown and Jessup

[2009] FamCA 492

FAMILY COURT OF AUSTRALIA

BROWN & JESSUP [2009] FamCA 492

FAMILY LAW – PROPERTY SETTLEMENT – s S79(2) – Just and equitable final orders

Family Law Act 1975 (Cth)

APPLICANT: MS BROWN

RESPONDENT: MR JESSUP

FILE NUMBER: MLC 4289 of 2007

DATE DELIVERED: 3 JUNE 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 3 JUNE 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS BUCHANAN

SOLICITOR FOR THE APPLICANT: FAMILY LAW ASSISTANCE PROGRAM

COUNSEL FOR THE RESPONDENT: MR STRUM

SOLICITOR FOR THE RESPONDENT: RICHARD CALLEY FAMILY LAWYERS

Orders

IT IS ORDERED BY CONSENT:

1. THAT on or before 3 August 2009 (“the date”) the wife sign all such documents and do all such acts and things as may be required to discharge or cause to be discharged Mortgage Dealing No. … to Permanent Custodians Limited Ltd (“the H Street mortgage”) secured over the real property situate at and known as H Street in the State of Victoria and more particularly described in Certificate of Title Volume … Folio … (“the H Street property”) and refinance in her sole name and otherwise be liable for and pay and indemnify and keep indemnified the husband against all payments and liability pursuant to the H Street mortgage and all apportionable rates, taxes, outgoings and other liabilities of or with respect to the H Street property of whatsoever nature and kind.

2. THAT contemporaneously with the wife’s compliance with the provisions of Order 1 hereof, the husband sign all such documents and do all such acts and things as may be required to transfer to the wife, at her expense, all of his right, title and interest in the H Street property (“the H Street transfer”).

3. THAT in the event the wife fails to comply with her obligations pursuant to Order 1 hereof by the date, the husband and the wife forthwith sign all such documents and do all such acts and things as may be required to sell the H Street property forthwith (“the H Street sale”) and upon completion of the H Street sale the proceeds thereof be applied as follows:

   a.first, in payment of the selling agents’ commission and selling expenses;

   b.secondly, in adjustment of rates and taxes and like apportionable outgoings;

   c.thirdly, in payment of the costs of the conveyance;

   d.fourthly, is discharge of the H Street mortgage and any other encumbrance affecting the H Street property;

   e.fifthly, the balance to the wife.

4. THAT pending the H Street transfer or completion of the H Street sale:

   a.the wife have the sole right to occupy the H Street property and during such right of occupation the wife pay all instalments pursuant to the H Street mortgage and all rates, taxes and like apportionable outgoings of the H Street property as they fall due;

   b.the parties hold their respective interests in the H Street property upon trust pursuant to these Orders; and

   c.neither party encumber or further encumber the H Street property without the consent in writing of the other party.

5. THAT the husband indemnify and keep indemnified with wife against all liability to his father’s deceased estate.

6. THAT the husband retain to the exclusion of the wife and the wife relinquish any entitlement to:

   a.the husband’s interest in his father’s deceased estate;

   b.the husband’s interest in:

   i.W Pty Ltd;

   ii.the W Unit Trust (of which W Pty Ltd is the trustee) ; and

   iii.the real property situate at and known as C property in the State of Victoria (of which W Pty Ltd is the registered proprietor as trustee for the W Unit  Trust);

   c.the husband’s AMP Flexible Lifetime Investment Portfolio, subject to the margin loan from Colonial Geared Investments in respect of which the husband shall remain solely liable and shall indemnify and keep indemnified the wife.

7. THAT the wife retain to the exclusion of the husband and the husband relinquish any entitlement to the wife’s interest in the real property situate at and known as L in the State of New South Wales.

8. THAT in accordance with paragraph 90MT(1)(b) of the Family Law Act 1975 (Cth):

   a.the husband is entitled to be paid the specified percentage of each splittable payment out of the wife’s interest in AMP Flexible Lifetime Superannuation (No. …) (“AMP Flexible Lifetime Superannuation”); and

   b.the wife’s entitlement and the entitlement of such other person to whom a splittable payment may be made to payments out of the wife’s interest in AMP Flexible Lifetime Superannuation is correspondingly reduced.

9. THAT the specified percentage for the purposes of Order 8(a) hereof is 100 per cent.

10. THAT Order 8 hereof have effect from the operative time, being four (4) days from the date of service of these Orders upon the trustee of AMP Flexible Lifetime Superannuation.

11. THAT the trustee of AMP Flexible Lifetime Superannuation do all such acts and things and execute all such documents as may be necessary to:

    a.calculate, in accordance with the requirements of the Family Law Act1975, the entitlement created by Order 8(a) hereof; and

    b.pay the said entitlement whenever a splittable payment becomes payable out of the wife’s interest in AMP Flexible Lifetime Superannuation.

12. THAT unless otherwise specified in these Orders and save for the purpose 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 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 (if any) be divided equally between the parties;

    c.insurance policies remain the sole property of the owner thereof;

    d.each party forego any claims he or she may otherwise have to any superannuation or related benefits belonging to or earned by the other;

    e.each party be solely liable for and indemnify the other against any liability encumbering any item of property to what 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.

13. THAT:

    a.the Application for Final Orders filed by the wife on 18 April 2007 (including for spousal maintenance) and her amended Application for Final Orders filed on 19 November 2008;

    b.the Response to an Application for Final Orders filed by the husband on 18 May 2007,

    be otherwise dismissed.

14. THAT all documents produced to the Court upon subpoena be returned to the persons who produced such documents.

15. THAT the ex tempore Reasons for Judgment delivered this day be transcribed and placed upon the Court file.

IT IS CERTIFIED:

1. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel for each of the husband and wife.

THE COURT NOTES:

A.THAT the parties intend these Orders shall as far as practicable finally determine the financial relationships between them (including any claims for spousal maintenance) and avoid further proceedings between them.

B.THAT the husband has consented to the retention of the H Street property by the wife with no adjustment in his favour by reason thereof as the wife presently intends to continue residing in the said property with the children of the marriage in the foreseeable future.

C.THAT the Court has made Orders 8 – 11 hereof (inclusive) notwithstanding that procedural fairness has not been accorded to the trustee of AMP Flexible Lifetime Superannuation, in circumstances where the superannuation interest the subject of the said Orders is of limited value (approximately $22,800) and 100 per cent of each splittable payment therefrom is to be paid to the husband.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4289 of 2007

MS BROWN

Applicant

And

MR JESSUP

Respondent

REASONS FOR JUDGMENT

1. The matter of Brown and Jessup is listed before me for a defended hearing. Ms Buchanan of counsel is briefed on behalf of the wife applicant; Mr Strum of counsel on behalf of the husband respondent. The parties have had the opportunity out of court to reflect on the pool of assets and discuss an overall financial and property adjustment with the assistance of their counsel, and for the husband his instructing solicitor, I have now minutes of consent orders before me pursuant to section 79 of the Family Law Act 1975, and the parties' request that the court approve and finalise these orders and the consequential financial adjustment.

2. I do not recite the facts of the case.  I have read all the affidavits.  I am aware that there was some level of debate as to certain assets, but predominantly the major assets were clearly identified.  Mr Strum prepared for the court, which is now Exhibit B, a summary of argument which identified the inherited properties and the emphasis that the husband proposed to place on those assets in his submissions to the court.  The affidavits of the parties were current and the financial circumstances were quite clear.  The husband had a significant income superiority and that has been developed within these orders.

3. The orders before me facilitate the wife retaining the home, but subject to a substantial mortgage which will be refinanced with the ANZ Bank.  Otherwise, the wife retains some moneys in her name or under her control and minor assets and a family interest in a property at L, New South Wales.  The husband hereafter will have no interest in the former matrimonial home in H Street, but will retain his financial interests in the property of his extended family as identified in paragraph 6 of the order.  He keeps his superannuation exclusively, and there is a transfer of the wife's superannuation of $22,000 to his sole name. The effect of that is the wife has no superannuation.

4. Mr Strum has carefully explained that such a superannuation order was not contemplated prior to this hearing today and the trustee, AMP, has not been given appropriate notice.  Technically I should adjourn the hearing for that notice to be given, but as it is a modest sum of money and a clean transfer of all of the wife's funds to the husband, I propose to make the orders, with the consent of all parties, and if there is any subsequent issue, it can be mentioned to me by arrangement. 

5. Mr Strum would have these orders as providing a very generous settlement to the wife and indeed, he used the expression, "of the range of 47 per cent/49 per cent of the asset pool."  I do not quibble in any way with the percentages, as they may be correct, and I have not fine-tuned the figures.  Ms Buchanan has a view that it may or may not be generous.  At the end of the day the only issue that I have to determine is whether the orders are just and equitable.  I regard as a priority in this case, particularly given the wife's lack of income and the realistic financial future she had in terms of income, that there had to be an arrangement that was proper and manageable by her.  It has provided some asset as security for her and a home for the children. 

6. I compliment the husband on taking a very pragmatic view. There is no doubt where I would have finished up on that issue, although I say that subject to all the evidence that might have been given over the time in this case. I conclude the orders are just and equitable under section 79(2) of the Act. For that reason I will pronounce the orders. I have emphasised to the parties that this brings finality. I have asked questions of the intent and purpose of notation B to the order, but I am satisfied that they are merely to record the present situation and hereafter the wife will, I have no doubt, look to maintain the home as that is her financial centrepiece, apart from the fact that it is the home for her and the children.

7. I congratulate the parties on settling a matter that I did not think would settle when I read the file yesterday, and of course I extend that congratulations to counsel because with all the will in the world, it still has to be consummated as a settlement.  I know the wife has put significant personal work and exertion into this case, and that is understood in the circumstances, and she should not in any way feel uncomfortable with this settlement.  It is pragmatic.  I do not use the description of generous but I think it is proper and just. 

8. I will have those comments transcribed and placed on the file.  There is no need to give them to counsel, so long as they are on the file.  It is clear that this is now a concluded matter. 

9. I order by consent in terms of the minutes or orders.  I request counsel to engross, and when agreed - I only say that if there is any subsequent discussion on any issue - when agreed as between practitioners, the orders to be emailed to my associate prior to 12.00 noon Friday 5 June 2009.  For case management purposes, all extant applications for final orders are otherwise dismissed.  There will be an additional order to be added to the orders that the extempore reasons for judgment be transcribed and placed upon the court file, certification for counsel in the usual form.  End of order.  I wish the parties well, both in managing the mortgage and all that goes with it in raising the children, who ultimately are your joint priority.  I will say no more.  Thank you to counsel.   

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

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Associate: