Claase and Claase

[2007] FamCA 421

FAMILY COURT OF AUSTRALIA

CLAASE & CLAASE [2007] FamCA 421

FAMILY LAW - PROPERTY - ORDERS - Application for variation of consent orders

Family Law Act 1975

Applicant: Mrs Claase

Respondent: Mr Claase

File Number: MLC 3221 of 2007

Date Delivered: 26 March 2007

Place Delivered: Melbourne

Judgment of: Carter J

Hearing Date: 26 March 2007

Representation

Counsel for the Applicant: Ms Dowler

Solicitor for the Applicant: Kliger Partners

Solicitor for the Respondent: Mr Schetzer

Solicitor for the Respondent: Pearsons Schetzer & Associates

Orders

1. That the wife's Form 2 application filed 22 March 2007 be dismissed.

2. That the husband's application for costs be refused.

3. That the wife's Form 2 application and the husband's Form 2A response filed 26 March 2007 be dismissed and removed from the list of cases awaiting determination.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3221 of 2007

MRS CLAASE

Applicant

and

MR CLAASE

Respondent

REASONS FOR JUDGMENT

1. These are proceedings brought by the wife, as I will refer to her, by way of a Form 2 application filed 22 March 2007.  She seeks to have an order for a Registrar of this Court to sign a transfer for land and certain other documentation in connection with the proposed sale of a property.

2. The husband opposes that application.

3. The property in question was one of the items of property dealt with by orders made by consent of the parties on 12 January 2007.  Pursuant to those orders, the wife was to pay the husband the sum of $180,000 on or before 12 April 2007 and contemporaneously with that payment, the husband was to transfer his interest in the property in question to the wife.

4. The wife was also to indemnify the husband in respect of the mortgage registered in favour of Westpac Banking Corporation (inter alia), and she was also to refinance the mortgage into her name alone.

5. There was a default clause that if the payment was not made in full by the due date then the property would be sold, the usual deductions would be made, the moneys owing to the husband together with interest would be payable to the husband and any balance would be paid to the wife.

6. Those are the only parts of the orders which I need to read into these Reasons for Judgment.

7. In support of the application filed on behalf of the wife, her solicitor, Ms Katrina Bristow, swore and caused to be filed an affidavit on 22 March 2007.

8. In that affidavit it is noted that the wife's intention at the time the orders were made was to retain the property for herself.  She was to have obtained assistance from her father.

9. Subsequently, however, and a matter of only a few weeks after the orders were made, the wife apparently changed her mind and formed the intention that the house would be sold so that the husband would be paid out.

10. The reasons for that are set out in the affidavit.

11. Arrangements have been made for the property to be sold, and that the auction is imminent.  Clearly certain documentation needs to be signed by both parties before any sale can be effected.

12. The husband, through his solicitor, says that he is concerned as to a myriad of things which might happen, all of which might adversely affect his position.

13. To my mind, the matter could be dealt with in a way which safeguarded the husband's position, and at the same time advantaged him, in the sense that he could have his settlement moneys earlier than strictly speaking they are payable under the Court orders.  But Mr Schetzer, who appears on his behalf says, obviously on his client's instructions, that he just wants to have the benefit of the orders which were negotiated and agreed to.

14. As far as the law is concerned, the orders that were made were final orders relating to alteration of interests in property.  The law is well settled, final orders can only be altered by way of agreement, by way of a s 79A application and order, or by a successful appeal to the Full Court.

15. None of those courses constitute any of the applications which are before me.  The application, regrettably to my mind, given what might be able to be achieved to the benefit of both parties, will accordingly have to be dismissed.

16. The husband seeks an order for costs.

17. The matters which are to be considered by the court are those set out in s 2A of s 117 of the Act.

18. The provisions as to the payment of costs are also well known.  I do not propose to go into any greater detail in respect of it, save to say that an applicant for costs must establish that there is a circumstance which justifies the order being made.

19. The husband has asked for costs estimated at just under $1000 relying, as I understand it, on the fact that the wife has been wholly unsuccessful.  She has been unsuccessful, that is correct.  That factor is of course only one of the factors for consideration.

20. An order for costs is of course a matter for the discretion of the trial judge.  All the factors must, as seen, be considered and weighed.

21. I have been told by Ms Dowler who appears on behalf of the wife that she is in part-time employment and has care of the children.

22. I have a relatively recent Financial Statement filed on behalf of the wife, and I see that her income by way of salary is $420 per week gross.  She receives family assistance and a parenting payment, and also receives child support.  Her income from all sources comes to some $900.

23. The husband’s Financial Statement was filed on 28 June 2006 and is a little more elderly than that of the wife.  He was receiving at that time an income estimated at some $937 per week.  He was paying child support and had the usual expenses.  It is clear that the husband's financial situation is better than that of the wife.

24. When that factor is put into the equation and balanced against the wife’s lack of success, I find that the circumstances do not justify an order for costs.  The husband’s oral application for costs will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:     

Date:              11 May 2007

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