Chiuso and Chiuso

[2007] FamCA 325

FAMILY COURT OF AUSTRALIA

CHIUSO & CHIUSO [2007] FamCA 325

FAMILY LAW - PROPERTY SETTLEMENT – Wife a bankrupt sought a settlement out of touch with reality – Claim handled by her Trustee – Orders made by consent.

APPLICANT: Mrs Chiuso

RESPONDENT: Mr Chiuso

INTERVENOR: P Pty Ltd (Trustee in Bankruptcy of the Wife's Bankrupt Estate)

FILE NUMBER: DGF 2188 of 2003

DATE DELIVERED: 22 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 22 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Thompson

SOLICITOR FOR THE RESPONDENT: Isakow Lawyers

COUNSEL FOR THE INTERVENOR: Mr Brewer

SOLICITOR FOR THE INTERVENOR: Macpherson & Kelley

Orders

1.AThat leave be granted to join Mr P as trustee of the bankrupt estate of the wife as a party to the proceedings.

1. That Mr P  as trustee of the bankrupt estate of the wife do all acts and things and sign all documents to:

   (a)transfer to the husband or his nominee all his right title and interest in the real property situate at and known as J in the State of Victoria and being the land more particularly described in Certificate of Title Volume … Folio … (the real property);

   (b)       withdraw any caveat lodged by the trustee on title to the said property;

   and the said transfer of land shall be effected on or before the  24 May 2007. 

2. That contemporaneously with the transfer the husband shall pay or cause to be paid to Mr P as trustee of the bankrupt estate of the wife the sum of $85,000 (the payment).

3. That contemporaneously with the delivery of the executed transfer to the husband he shall do all acts and things and sign all documents to refinance the security registered on title of the real property to B Pty Ltd and release the wife from any indebtedness under the said mortgage.

4. That the court declares that the payment of the sum of $85,000 is in full and final settlement of all claims made by the wife in these proceedings by her and by Mr P as trustee of her bankrupt estate for:

   (a)property settlement;

   (b)the wife’s claim for return of chattels and jewellery.

5. That contemporaneously with the payment referred to in paragraph 2 the husband shall do all acts and things and sign all documents to transfer to the wife all his right title and interest in Nissan Pathfinder motor vehicle registered number … .

6. That paragraphs 1 and 4 of the orders made 8 October 2003 by Judicial Registrar Ramsden be discharged.

7. That the wife’s amended Form 1 Application for final orders filed 2 January 2007 and the husband’s amended Form 1A Response filed 31 October 2006 are otherwise dismissed together with any other extant applications.

8. That the husband be solely responsible for the payment of costs to:

   (a)Mr V;

   (b)Dr E;

   and all extant costs orders against the wife be discharged.

9. That the proceedings be removed from the active pending cases list.

NOTATION

The court notes that the parties being the husband and wife and Mr P as trustee of the bankrupt estate of the wife intend these orders as far as practicable finally determine the financial relationships between them and avoid proceedings.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 2188  of 2003

Mrs Chiuso

Applicant

And

Mr Chiuso

Respondent

And

Trustee in Bankruptcy of the Wife’s Bankrupt Estate

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of defended cases.  It is a property dispute in which the wife, as a bankrupt had expectations of having a court order in her favour in excess of $2 million. 

2. The husband was born in December 1961 and the wife was born in April 1968.  They met and married in July 1987.  Following unhappy differences between them, they separated in May 2002.  There are three children of their union:  a son, who is 16 years of age; an elder daughter, who is seven years of age; and a younger daughter, who is six years of age.  They reside with their mother and spend time with their father, who is a storeman by occupation.

3. The welfare issues that were at large between the parties following their separation have been settled by way of final orders some time ago and has now been disposed of.  All that remained was the issue of a property settlement which centred on a bitter family dispute that also found its way into the Supreme Court of Victoria. 

4. The Applications before the court consisted of the wife's Amended Form 1 Application for final orders filed on 2 January 2007 and the husband's Amended Form 1A Response filed on 31 October 2006.  The proceedings have been extant for a considerable period of time, commencing in the year 2003. 

5. The actual claims by the parties were quite absurd, in the sense that the wife's application for property orders in her favour sought a payment to her of $2.4 million by the husband.  The husband sought an order for transfer to him of the wife's interest in their two‑tenths share in a property at J on payment by him to her of a lump sum detailed in his Case Outline Document.  As I said, the wife has been made bankrupt and as such, her Amended Form 1 Application had no standing before me. 

6. Mr Brewer of counsel appears for the Trustee in Bankruptcy of the wife's Bankrupt Estate.  Mr Thompson appears for the husband.  I have had the advantage of reading the affidavit of the Trustee filed 15 January 2007 and I have also read the affidavit of the wife filed 2 January 2007 together with the husband's affidavit filed 31 October 2006.  I have read the Financial Statements of each of the parties.

7. Importantly, in this matter I have been greatly advantaged by a Case Outline Document prepared on behalf of the husband, which has been most helpful in synthesising, if I may use that term, the issues before me.  That document summarises all of the necessary matters by way of background and the issues in contest for my determination.  I have carefully read that document, which also helpfully assists me with the chronology of relevant events.

8. The matter was before me on 13 February 2007 for the purposes of preparation for trial.  I made an order qualifying the Case Outline Document, and as part of that document I ordered there be provided a statement of facts and issues for determination by the court.  Those issues have been clearly delineated in the document filed on behalf of the husband together with a schedule of the property, liabilities and financial resources of the parties. 

9. The Case Outline further sets out the summary of argument on behalf of the husband, addressing itself carefully to the issues pursuant to the provisions of s 79(4)(a), (b) and (c) of the Family Law Act 1975 and the issue of prospective adjustments pursuant to s 75(2) of the Act. It is with this background I can safely say that I am seized with sufficient information to understand the rationale of the adjustment between the parties.

10. At the commencement of the proceedings this morning the wife appeared and sat at the Bar table.  I took the opportunity to address both Mr Thompson and Mr Brewer on some preliminary thoughts I had about the matter and associated general difficulties.  I also addressed them both, in the presence of the wife, of approaching the matter with practical good common sense, focussed on reality.  This they have done, and accordingly Minutes of Proposed Orders have been entered into and signed by Mr P as Trustee of the Bankrupt Estate of the wife and by the husband. 

11. I am satisfied on the material before me that the orders are just and equitable and sit within the framework of the relevant mandates of the Family Law Act 1975 (as amended).

12. I also stress the following.  There are obligations on judges of this court to be satisfied that orders are just and equitable, notwithstanding that they are made by consent.  It is upon the material that I have carefully outlined in these short remarks that I approve and make these orders.  I am satisfied on that material that the proposed orders are both just and equitable.  Both Mr Brewer as counsel for the Trustee in Bankruptcy of the wife's bankrupt estate and Mr Thompson urged me to make the orders.  This I will do.

13. I have also been assisted by quality documents provided by Mr Isakow the solicitor for the husband who also provided a Judge's Copy of Court Book of Documents.  Clearly the matter has been well prepared, and is a case that could have taken days in court only to achieve this result.  I congratulate the parties on having the good commonsense and the dignity of coming to this adjustment.  I mark the Minute of Consent Orders Exhibit "A".

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  19 April 2007.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CHIUSO & CHIUSO