Burke and Hollis

[2017] FamCA 313

FAMILY COURT OF AUSTRALIA

BURKE & HOLLIS [2017] FamCA 313

FAMILY LAW – PROPERTY SETTLEMENT – consent orders – leave granted pursuant to section 44(6) of the Family Law Act 1975 (Cth) – just and equitable division of property

Family Law Act 1975 (Cth) ss 44(5), 44(6)

APPLICANT: Mr Burke

RESPONDENT: Ms Hollis

FILE NUMBER: MLC 690 of 2017

DATE DELIVERED: 4 April 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4 April 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Ryan

SOLICITOR FOR THE APPLICANT: Armstrong Legal

THE RESPONDENT: In Person

Orders

IT IS ORDERED:

1. That pursuant to section 44(6), the applicant have leave to make application for final property orders outside the standard application period.

BY CONSENT IT IS ORDERED:

1. That within 60 days of the date of these Orders (“the date”) the Respondent:

   2.1Pay to the Applicant’s solicitors for the benefit of the Applicant the sum of $650,000 (“the payment”);

   2.2Indemnify the Applicant against all liability for all rates, taxes and outgoings of the real property situate and locate at B Street, Suburb C in the State of New South Wales more particularly described as Certificate of Title of Lot … in Deposited Plan … (“the Suburb C property”) of whatsoever nature and kind from the date on which the property is transferred to the Respondent.

2. That in the period leading up to and contemporaneously with the payment the Applicant do all acts and things necessary to transfer his interest in the Suburb C property to the Respondent, including but not limited to the preparation of the transfer documentation and the discharge of the mortgage held by the National Australia Bank.

3. That in default of the Respondent complying with these orders within 70 days of the date, the Suburb C property be forthwith sold out of court (“the sale”) and the parties each do all acts and things and sign all necessary documents to effect a sale by way of a public auction and by way of consequential arrangements that shall be made for the purposes of the said public auction:

   4.1The said public auction shall take place within 120 days of the date of these orders (“the first auction”);

   4.2The Suburb C property shall be listed for sale with an estate agent to be agreed between the parties and failing agreement to be determined by the Respondent nominating three agents in writing within 70 days of the date of these orders and the Applicant selecting one of the three nominated agents within 80 days of the date of these orders;

   4.3The reserve price shall be as agreed between the parties upon consultation with the estate agent and failing agreement shall be as advised by the estate agent in writing;

4. In the event that the Suburb C property is not sold within 21 days of the first auction, the property shall be forthwith listed to be sold by way of private sale (“the private sale”).

5. Upon completion of the sale of the Suburb C property, the proceeds of the sale be applied as follows:

   6.1First, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the real property;

   6.2Secondly, the sum of $650,000 to the Applicant together with compound penalty interest in accordance with Rule 17.03 of the Family Law Rules 2004 (Cth) adjusted weekly from the date to the date of payment; and

   6.3Thirdly, the balance then remaining to the Respondent.

6. That pending the payment or the Applicant receiving the whole of his entitlements pursuant to order 5 of these orders:

   7.1The Respondent have the sole right to occupy the Suburb C property. During such right of occupation the Respondent is to pay all rates, taxes and like apportionable outgoings of the property as they fall due.

   7.2The parties hold their respective interests in the real property upon trust pursuant to these orders.

   7.3Neither party encumber the real property without the consent of the other party.

7. That the Applicant retain all his right, title and interest in the following:

   8.1The real property situate and located at D Street, E Town in the State of New South Wales, more particularly described as Certificate of Title Lot … in Deposited Plan …;

   8.2His automobiles;

   8.3His National Australia Bank accounts;

   8.4His shareholdings in publically listed companies;

   8.5His MLC superannuation interests; and

   8.6His Company F superannuation interests.

8. That the Respondent retain all her right, title and interest in the following:

   9.1The real property situate and located at G Street, Suburb H in the State of New South Wales, more particularly described as Certificate of Title Lot … Section 5 in Deposit Plan …;

   9.2Her Japanese motor vehicle;

   9.3Her Westpac Bank accounts;

   9.4Her shareholdings in publically listed companies; and

   9.5Her superannuation interests.

9. That forthwith the parties arrange for their items of personal property at the Suburb C property to be divided by agreement between themselves.

10. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

    11.1Each 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 this date. All chattels in the Suburb C property are considered to be in the possession of the Respondent.

    11.2Each party forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;

    11.3All insurance policies to become the sole property of the beneficiary named hereunder;

    11.4Each party be solely liable for and indemnify the other against any liability in their respective name and any liability encumbering any item of property to which that party is entitled pursuant to these orders.

AND THE COURT NOTES:

A.Pursuant to section 90ST of the Family Law Act 1975 (Cth), the parties intend that these Orders shall finally determine the financial relationship between them and avoid further proceeding between them.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burke & Hollis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 690  of 2017

Mr Burke

Applicant

And

Ms Hollis

Respondent

REASONS FOR JUDGMENT

1. The matter of Burke & Hollis comes before me today upon a listing made by Registrar Mestrovic on 8 February 2017, upon receipt of an application for consent orders filed on behalf of the parties on 25 January 2017.  That application seeks that the Court make final property orders in respect of the parties’ relationship.  That application has been filed out of time.  Accordingly, the matter is listed before me today on the basis that the parties seek leave of the Court to have orders made outside the standard application period.  The background to the matter is as follows.

2. The applicant is aged 60 years, resides in Melbourne Suburb I and is retired.

3. The respondent is aged 61 years and lives in New South Wales in what is the former matrimonial home. 

4. The parties have filed, in addition to the application for consent orders, a statement of agreed facts on 31 March 2017.  That statement provides a helpful background as to the basis upon which the proposed consent orders are sought, and further sets out submissions as to why it is appropriate that leave be granted in this matter. 

5. Section 44(5) of the Family Law Act 1975 (Cth) (“the Act”) provides that a party to a de facto relationship may apply for orders under the Act for the alteration of property interests only if the application is made within a period of two years after the end of the de facto relationship. That is referred to as the standard application period.

6. Section 44(6) of the Act provides that the Court may grant the party leave to apply after the end of the standard application period if the Court is satisfied that hardship would be caused to the party or a child if leave were not granted. The Court is required to consider the reasons for any delay in making an application, the prejudice to the other party and the basis of any prima facie case. None of those matters are particularly relevant in the circumstances of this case, given that the parties, together, seek leave of the Court to have final property orders made.

7. Hardship is not simply a matter of financial hardship.  Hardship may also be the fact that parties own properties together, that they no longer live together and it is no longer appropriate that they own property together.  That is the circumstance as presents itself in this case.  The principal asset of the parties is the former matrimonial home in Suburb C, New South Wales.

8. Hardship can also simply be a matter that parties want to bring to an end their financial relationship, and absent the grant of leave by the Court are not able to do so.  Again, that is a feature of this case.  These parties come to Court today seeking to bring to an end their financial relationship.  The parties shared a relationship from 1992 to December 2010.  The statement of agreed facts describes a circumstance whereby, upon separation, the parties shared an amicable relationship and only entered into negotiations to finalise their financial relationship commencing in about 2016.  Accordingly, in bringing their application in January 2017, they are approximately five years or so outside the standard application period.

9. Nonetheless, they establish hardship, given that they jointly own a property together and now seek to equalise their financial interests so that each can move forward separately with their lives.  Accordingly, I am satisfied that it is appropriate that leave be given in this case for the application to be made.  I am further satisfied, having regard to the history of the matter, and the history of the party’s financial relationship as set out in the statement of agreed facts, that the proposed terms of settlement are just and equitable.  Accordingly, I make orders in the terms of the minute of consent order that is signed by the parties.  The minute will remain on the Court file.  It will be marked with the letter A, and I direct that the solicitor for the applicant engross and file that minute at Court within seven days.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 4 April 2017.

Associate:

Date:  4 April 2017