CAREY & CAREY

[2012] FamCA 1036

FAMILY COURT OF AUSTRALIA

CAREY & CAREY [2012] FamCA 1036

FAMILY LAW – PROPERTY - Where the Applicant passed away prior to the conclusion of the proceedings - Where all parties consent to the substitution of the legal personal representative of the Applicant - Where all parties consent to the distribution of property to be made

Family Law Act 1975 (Cth)

APPLICANT: Ms Carey

RESPONDENT: Dr Carey

FILE NUMBER: BRC 3442 of 2011

DATE DELIVERED: 10 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 10 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Pope

SOLICITOR FOR THE APPLICANT: Derek Geddes Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hackett

SOLICITOR FOR THE RESPONDENT: Evans & Company Family Lawyers

Orders by Consent

1. Piero Berardi be substituted pursuant to s 79(8) of the Family Law Act 1975 (Cth) as the legal personal representative of the Applicant Wife, Ms Carey, in these proceedings, whose death occurred before the conclusion of them and hereafter he be referred to as the Applicant.

2. The Applicant transfer to the Respondent Husband (hereafter “the Husband”) all of Ms Carey’s right, title and interest in and to the properties known as B Street, C Town in the State of Queensland, and D Street, Sydney, in the State of New South Wales.

3. The Applicant retain, free from any and all claims of the Husband, the property at E Street, Brisbane.

4. The Husband retain, free from any and all claims of the Applicant and/or the estate of the said Ms Carey:

(a)The shares and investments in his name;

(b)The contents of his bank accounts;

(c)His Colonial Mutual Term Life policy;

(d)His motor vehicle;

(e)Save as otherwise provided for in these Orders, the contents, goods, chattels and other items situated at /within the property known as B Street, C Town, in the State of Queensland and D Street, Sydney, in the State of New South Wales.

1. The Applicant and the estate of Ms Carey retain free from any and all claims of the Husband:

   (a)The contents of the bank accounts of Ms Carey;

   (b)Any shares and investments in the name of Ms Carey;

   (c)her motor vehicle;

   (d)Save as provided for in Order 6, all jewellery and the contents, goods, chattels and other items situated at/within the property known as E Street, Brisbane, in the State of Queensland, of Ms Carey and which is now in the possession of the Applicant/her estate.

1. The Applicant forthwith provide to the Husband the men’s designer watch in the possession of the Applicant/Estate.

1. The Husband forthwith provide to the Applicant:

(a)Seven (7) paintings of fruit by the artist “F” housed at the property known as B Street, C Town, in the State of Queensland;

(b)Two portraits of Ms Carey;

(c)An angel’s head figure;

(d)One handmade bedspread; and

(e)Two small bedside mirrors.

1. In return for and contemporaneously upon the transfer of ownership of the properties in paragraph 2 hereof, the Husband pay to the Applicant the sum of $50,000.00.

1. Each party bear their own costs including reserved costs.

1. All outstanding applications be dismissed and removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carey & Carey 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 BRISBANE

FILE NUMBER: BRC 3442 of 2011

Ms Carey

Applicant

And

Dr Carey

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The Applicant Wife, who is now deceased, and the Respondent Husband, married in 1986 and separated on 7 April 2007. Financial proceedings were commenced by the Wife on 21 April 2011.

2. The Wife passed away on 25 September 2012 at the age of 74. The Husband, who is now approximately 87 years of age, is a medical practitioner. The proceedings were set down on a priority basis to be heard on 8 and 9 October 2012 as a consequence of a health diagnosis of the Wife, and the matter was brought forward to be heard on 4 and 5 October 2012.

3. As noted, the Wife passed away on 25 September 2012. On the last occasion at the trial, the will of the deceased was not received by the Husband until shortly before the trial was to commence. The passing of the Wife obviously necessitated the need for an application to be made under s 79(8) of the Family Law Act 1975 (Cth) (“the Act”), seeking a legal personal representative of the deceased, and as that had not occurred as at the date of the last trial, the matter was adjourned.

4. Fortunately, the orders now sought include an order that Mr Piero Berardi be substituted, pursuant to s 79(8) of the Act, as the legal personal representative of the Applicant Wife, and the parties have been able to negotiate orders, as and by way of final orders, which are signed by each of the parties and their lawyers.

5. The pool of assets approximates, I am told, about $2,500,000. The final orders will see Dr Carey remaining in the former matrimonial home. In circumstances where he obviously has future needs, the outcome representing either a 65 per cent/35 per cent apportionment in his favour on the Applicant’s case, or a 60 per cent/40 per cent outcome on the Respondent’s case, represents a just and equitable outcome in the circumstances.

6. I am satisfied that I ought make the orders that are proposed, and I make those orders as per the draft signed by the parties and their lawyers and now initialled by me and placed with the file.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 10 December 2012

Associate:

Date: 10 December 2012