Buckle and Buckle

[2007] FamCA 1146

FAMILY COURT OF AUSTRALIA

BUCKLE & BUCKLE [2007] FamCA 1146

FAMILY LAW – PROPERTY SETTLEMENT – Consent property orders – Referral to pronounce orders – Australian Taxation Office to be notified

Family Law Act 1975 (Cth)

APPLICANT: Mrs Buckle

RESPONDENT: Mr Buckle

FILE NUMBER: MLC 8949 of 2007

DATE DELIVERED: 24 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 24 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Conlan

SOLICITOR FOR THE APPLICANT: Conlan Lawyers

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

ORDERS

1. THAT the further hearing of the application to pronounce final property orders by consent be adjourned to 17 October 2007 in the Judicial Duty List at 10.00 a.m.

2. THAT the husband, by himself and by his accountants, K & Associates forthwith give full and proper notice to the Australian Taxation Office of this application and his proposal to transfer his equity in the former matrimonial home to the sole name of his wife.

3. THAT the husband forthwith provide by way of an affidavit to this Court evidence of compliance with the preceding Order and specifically advise the Australian Taxation Office of the adjourned date of this application.

4. THAT liberty be reserved to any other party to apply upon proper documentation filed and served.

5. THAT the husband make, file and serve a Notice of Address for Service forthwith.

6. 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 Buckle & Buckle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8949 of 2007

MRS BUCKLE  

Applicant

And

MR BUCKLE  

Respondent

REASONS FOR JUDGMENT

1. The matter of Buckle is before the court for approval of consent orders.  The matter was referred by Registrar Williams to this list, as she had earlier declined to make consent orders.  Both the husband and wife are in court this day, the wife represented by her solicitor Mr Conlan; the husband appeared in person.

2. The overview of the financial circumstances of the parties is that they are joint owners of a property in the R area.  That property is valued at $360,000 and is encumbered by a mortgage of approximately $125,000.  There is therefore a joint equity of approximately $235,000 or thereabouts. 

3. The husband owns a fast food business in the L area valued at approximately $50,000. Otherwise there are motor vehicles, and both parties have superannuation.

4. The husband's entitlements to superannuation have been disclosed to the court at approximately $100,000, and the wife's entitlements at approximately $28,000.

5. The husband is 59 years of age, the wife is 60 years of age.  The marriage was of 37 years duration and there are two adult children.

6. The matter of concern to the court is that there is an outstanding debt in favour of the Australian Tax Office.  The quantum of that debt is subject to negotiation and I make no finding in that regard.  The husband has a firm of accountants, K and Associates, who are negotiating the payment of an appropriate agreed sum on his behalf with the Australian Tax Office.  I understand from information disclosed to the court this day by the husband that the debt relates in part to GST payments outstanding over the past four years, and otherwise to the fact that personal taxation returns have not been filed for some 10 years.

7. The effect of the consent orders today would have seen the wife pay to the husband the sum of $1 and otherwise the wife would have been the sole owner of the R property, and the husband's current equity, as a matter of title, of approximately $117,500 would have been transferred to the wife.

8. As an overview, if a husband and wife after a very long marriage reach a settlement, I would not necessarily reject the settlement on the basis that it was too generous to one party.  In this case the husband does retain the business, and his superannuation is relatively substantial.

9. Nevertheless, the concern is that the Australian Tax Office has no knowledge of these proceedings.  In my view, given that there are currently negotiations as to the quantum of the tax debt, they are entitled to know the current assets of the parties and the manner in which the husband is proposing to transfer his equity in the home to the wife.

10. What I propose to do is to ensure that full notice is given to the Australian Tax Office either by the husband or by his accountant and evidence of that will need to be documented to this court.  Thereafter, the attitude of the Australian Tax Office, whether they seek to oppose the settlement or make any other claim, is a matter for them and future proceedings.  They are not a party and have not been joined but I conclude it is proper they be notified.

11. I will therefore adjourn this application for the approval pursuant to section 79 of the Family Law Act 1975 of the proposed settlement to the Judicial Duty List on 17 October 2007 at 10.00 a.m.  In the circumstances I cannot say, as I am required to declare, that these orders are just and equitable.  It may also be prudent for a more particular Form 13 financial statement to be filed by both the husband and wife, rather than relying on the limited information before the court by way of the consent order procedure.  I will also require the husband to file a notice of address for service, and that is being attended to forthwith.

12. For those very brief reasons, which I will have transcribed, placed upon the court file and made available to both parties, this matter is adjourned.

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

Associate

Date: 26 September 2007