Carter and Carter

[2013] FamCA 1122

FAMILY COURT OF AUSTRALIA

CARTER & CARTER [2013] FamCA 1122

FAMILY LAW – PROPERTY – Final orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Carter

RESPONDENT: Mr Carter

FILE NUMBER: MLC 4894 of 2013

DATE DELIVERED: 6 September 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 6 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hession

SOLICITOR FOR THE APPLICANT: Pearsons Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: De Marco Lawyers

ORDERS

IT IS ORDERED BY THE COURT

1. That the proceeds of sale of B Street, Suburb C (“the Suburb C property”) be applied as follows:

   1.1Firstly, to pay all costs, commissions and expenses of the sale;

   1.2Secondly, to discharge the mortgage and any other encumbrance (caveats) affecting the Suburb C property; and

   1.3Thirdly, the balance remaining to the Wife.

2. That the Wife shall otherwise retain for her sole and exclusive use, enjoyment and benefit all other items of property in her name, possession and/or control including but not limited to the following:

   2.1The motor vehicle;

   2.2Her bank accounts and savings; and

   2.3Her personal belongings and effects.

3. That the Wife shall be solely liable for and indemnify the Husband in relation to all debts and liabilities in her name or attaching to any item of property which she is to retain pursuant to these Orders including:

   3.1The motor bike debt to “Once” finance company in her name; and

   3.2GE Finance debt in her name.

4. That the Husband shall otherwise retain for his sole and exclusive use, enjoyment and benefit all other items of property in his name, possession and/or control including but not limited to the following:

   4.1The proceeds of sale of the second motor vehicle;

   4.2His bank accounts and savings; and

   4.3His personal belongings and effects.

5. That the Husband shall be solely liable for and indemnify the Wife in relation to all debts and liabilities in his name or attaching to any item of property which he is to retain pursuant to these Orders including, but not limited to, the following:

   5.1Debt in relation to the uninsured stolen boat;

   5.2All business debts; and

   5.3His debt to Mr D solicitor.

6. 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:

   6.1Each party shall 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;

   6.2Money standing to the credit of the parties in any joint bank account(s) is to be divided equally and the account(s) closed;

   6.3All insurance policies shall become the sole property of the policy owner named thereon;

   6.4Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;

   6.5Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

   6.6Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

IT IS FURTHER ORDERED BY THE COURT THAT

1. The Initiating Application filed 20 June 2013 be otherwise dismissed and removed from the list of cases awaiting hearing.

2. A sealed copy of the orders made this day be served upon the husband as soon as practicable by forwarding them to him by pre-paid post to his last known residential address E Street, Suburb C in the State of Victoria and to De Marco Lawyers, … in the State of Victoria.

AND THE COURT NOTES THAT

Pursuant to Section 81 of the Family Law Act 1975 the parties intend these Orders shall, as far as practicable, determine the financial relationship between them and avoid further proceedings between them. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Carter 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 4894 of 2013

Ms Carter

Applicant

And

Mr Carter

Respondent

REASONS

1. The applicant wife in this matter filed an initiating application on 20 June 2013 in which she sought final orders for property settlement. The matter was listed for a case assessment conference on 5 August 2013.  On 24 June 2013 the husband signed a minute of consent orders, which was then signed by the wife on 25 June 2013, in accordance with the orders sought by the wife in her application.   

2. The orders the parties ask me to make today are in similar terms save and except that the property at B Street, Suburb C, which was the former matrimonial home, has now been sold and the orders that are sought today deal with the proceeds of sale rather than requiring a sale of that property.

3. On 24 June 2013 the solicitors for the wife forwarded a letter to Registrar Lethbridge which was signed by both Ms Abela on behalf of the wife and Mr Bailey, solicitor, on behalf of the husband, in which they sought to have the orders made in terms of the minute of orders signed by the parties which accompanied that letter.  On that date, because at the time the husband had not filed any financial material, the matter was adjourned to this list and orders were made for the husband to file and serve a response and a financial statement.  Those documents were to be filed by 4.00 pm on 19 August 2013.

4. On 8 July 2013 De Marco Lawyers forwarded a letter to Ms Abela of Pearson’s enclosing documents by way of service which included a notice of address for service, a response to the initiating application, and a financial statement sworn by the husband on 8 July 2013.  Unfortunately, although those documents were served upon the wife’s solicitors, they have not been formally filed.  They are, however, annexed to the wife’s affidavit which was filed on 4 September 2013.

5. Mr Carter has been called and does not appear and is not represented at the hearing today.  I am satisfied that Mr Carter is aware of the proceedings, he is aware of the orders that are sought, and that he has chosen not to participate further in these proceedings. 

6. The parties in this matter were married in 1998 and separated in 2003, although there have been a number of reconciliations thereafter.  There are five children of their marriage who are aged, respectively, 14, 12, 10, six and five.  Those children all live with the wife and spend limited time with the husband and there is no application with respect to those children before the Court.

7. Ms Hession for the wife described the asset pool in this matter as modest, which is clearly an accurate description of the property of these parties.  The proceeds of sale of what was the former matrimonial home are approximately $24,000.  The wife has a motor vehicle in her name which has a value of approximately $20,000. There are nominal savings and household contents and furniture. 

8. There are a number of liabilities, which include a debt of approximately $40,000 in relation to a boat which the husband alleges was stolen. There is a debt of approximately $3,500 with respect to a motorbike owned by the husband but in the wife’s name, and a further GE Finance liability for a vehicle previously owned by the husband but now sold. The amount of the proceeds of sale of that vehicle are unknown to the wife but have been retained by the husband.  The loan which relates to that vehicle is approximately $1,500.  The parties have modest superannuation entitlements. 

9. The orders proposed are that the wife retain the proceeds of sale of the former matrimonial home.  She will retain the motor vehicle in her name, her bank accounts and savings, her personal belongings and effects.  She will be liable for the GE Finance debt in her name of approximately $1,500 and the motorbike debt, similarly in her name, of approximately $3,500.

10. The husband will retain the proceeds of sale of the motor vehicle, his bank account savings and his personal belongings and effects.  He will also be liable for the debt in relation to the uninsured and allegedly stolen boat, his business debts, and his debt to Mr D, solicitor. 

11. Both of the parties came to the marriage with modest assets. They both worked full-time during the marriage, save and except for those periods when the wife was engaged in caring for the children of the marriage.

12. The wife, as I have previously said, has the primary care of the five children.  She works part-time and earns approximately $30,000 per year.  The husband works full-time earning $150,000 per annum. 

13. In all of the circumstances, I am satisfied that the orders proposed are just and equitable.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 6 September 2013.

Associate: 

Date:  21 May 2014