Bundon and Bundon

[2010] FamCA 942

FAMILY COURT OF AUSTRALIA

BUNDON & BUNDON [2010] FamCA 942

FAMILY LAW – PROPERTY – Review of Registrar’s decision not to make consent property order – More evidence subsequently provided as to relevant matters – Consent property order made – Consent parenting orders also made

Family Law Act 1975 (Cth) s79

Gallo & Dawson (1990) 93 ALR 479
Harris & Caladine (1991) 172 CLR 84

APPLICANT: Mr Bundon

RESPONDENT: Ms Bundon

FILE NUMBER: BRC 5385 of 2010

DATE DELIVERED: 15 October 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 15 October 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Turnbull
Journey Family Lawyers

THE RESPONDENT: In person (by telephone)

Orders

IT IS ORDERED

1. The time for filing the husband’s application for review of the order made by the Registrar on 23 July 2010 is extended to 13 August 2010.

2. The Registrar’s order made on 23 July 2010 is set aside.

AND IT IS ORDERED BY CONSENT

Property proceedings

1. Pursuant to s79 of the Family Law Act 1975 (Cth) the property of the parties and either of them be divided in accordance with the provisions of Annexure A paragraphs 1-17.

Parenting orders

1. In accordance with the provisions of Annexure A paragraphs 18-34.

Other orders

1. In accordance with the provisions of Annexure A paragraphs 35-36.

AND IT IS FURTHER ORDERED

1. The original minute of orders signed by the parties be placed and kept on the Court file.

2. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5385 of 2010

MR BUNDON

Applicant

And

MS BUNDON

Respondent

REASONS FOR JUDGMENT

1. This is a review of a Registrar’s order made on 23 July 2010 refusing to make a consent property order under section 79 of the Family Law Act 1979 (Cth).

2. The application for review was filed by the husband on 13 August 2010.  He seeks that the time for its filing be extended to that date.  The wife does not oppose that the time be extended and in the circumstances I will do so on the basis that in this case strict compliance with the Rules would work an injustice to the husband and to the wife.  Gallo & Dawson (1990) 93 ALR 479 per McHugh J at 480-1.

3. The Court by way of review proceeds by way of original hearing.  Harris & Caladine (1991) 172 CLR 84 at 95-6; 106; 125-6; 164. It is open to me, however, if I wish, to examine and consider the Registrar’s reasons, if any, for her decision. In this regard, the order of the Registrar contains the following notations:

   1.Not just and equitable 

   2.Refer to points made in previous requisition letter 

   3.Non super pool is small and Husband has income from which he can rebuild 

   4.Wife cannot access superannuation entitlements 

   5.Child has special needs 

   6.Husband spends very limited time with children.

4. Prior to that, the steps taken in the affidavit of Mr Abdelshahied filed 5 October 2010 had occurred:  see at pars 8-17.  I would refer in particular to annexure AA5, which contains the Registrar’s handwritten notes 18 June 2010 as to her reasons at that date for not being satisfied at that stage that the proposed consent property order was just and equitable.  Subsequently, a letter of information 19 July 2010 addressing the matters in the notes was sent to the Registrar signed by both the husband and the wife:  annexure AA9 to that affidavit.

5. Since then, I have had the benefit of reading the affidavit of the husband filed 13 August 2010 and considering in that context the balance sheet annexed to the application for consent orders filed 10 June 2010, Part 1, pp21-22, particularly p22. I have also had the benefit today of considering the written submissions prepared by Mr Turnbull, Solicitor, for the husband, and of hearing the wife in person on last Monday 11 October 2010 and questioning her directly as to the matter. Whilst the wife has not obtained a certificate from a lawyer, I am satisfied on the basis of what she has said during the hearing that she has sought and obtained legal advice in relation to the proposed section 79 consent property order. The wife assured me that she is not and has not been under pressure to agree to the proposed order.

6. Despite the reservations of the Registrar, I am satisfied on the basis of new material that the proposed consent property order is just and equitable for the reasons set out in Mr Turnbull’s written submissions, pars 22-31, especially 31.  In particular, on 11 October 2010 I ordered:

   The husband file and serve an affidavit of himself annexing one appraisal by each of Ray White Rural at [W] or similar at [W] and one other of the house and property at [Y] by 4 pm on Thursday 13 October 2010.

7. Further, by email from the Associate 12 October 2010 sent to the husband’s solicitors and to the wife, the following was requested:

   In reference to the further hearing of the application for consent orders at 2.15 pm this Friday 15 October 2010 her Honour would like to see evidence of the current mortgage debt and credit card debts.

8. The husband consequently has filed an affidavit 13 October 2010 satisfying me as to these matters and that the financial circumstances in the balance sheet are accurate. 

9. I am satisfied in all of the circumstances that the proposed consent property order is just and equitable and I will make it.  In particular, although the wife will receive only $20,000, the only substantial asset of the parties is the former matrimonial home, valued at $350,000, but with a mortgage of $320,000, allowing the husband only $30,000 equity.  He however will be assuming all debts and liabilities including not only that $320,000 but a further amount of debt collectively just under $100,000.  The net result, according to the balance sheet, is that the wife will be ahead $31,000 and the husband behind about $43,800, overall a $70,000 differential in the non superannuation part of the pool.

10. In relation to the superannuation component of the pool, I am satisfied that its division is just and equitable.

11. I am satisfied also as to procedural fairness in relation to the trustee:  affidavit Mr Abdelshahied filed 10 June 2010.

12. Since the Registrar’s order, the husband and the wife have signed again the proposed consent property order, which is the same in substantive terms but including reference to the review.  I will place that document with the record of proceedings.

13. In relation to the children, I am satisfied by reference to the material that the proposed consent orders are in their best interests and I will make those orders.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 15 October 2010.

Associate:                 

Date:    25 October 2010