Clarke and Edgerton

[2013] FamCA 1129

FAMILY COURT OF AUSTRALIA

CLARKE & EDGERTON [2013] FamCA 1129

FAMILY LAW – PROPERTY – Final orders by consent.

Family Law Act 1975 (Cth)

APPLICANT: Mr Clarke

RESPONDENT: Ms Edgerton

FILE NUMBER: MLC 1475 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 Marston

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Robinson Gill

ORDERS

BY CONSENT IT IS ORDERED

1. That the Respondent mother retain the property situate at and known as B Street, Suburb C (" the Suburb C property") to the exclusion of the Applicant father and the Respondent mother shall indemnify the father in relation to all rates, taxes, utilities and like outgoings of or with respect to the Suburb C property.

1. That on or before 1 September 2015 ("the date") the Respondent mother shall discharge the Citibank mortgage encumbering the Suburb C property and the mother shall pay and shall indemnify the father in relation to all repayments on the Citibank mortgage pending the discharge.  The applicant father is to forthwith provide a registrable withdrawal of any caveat or encumbrance lodged on the title to the Suburb C property.

1. That in the event the mother fails to discharge the Citibank mortgage by the date, the mother shall do all such things and sign all such documents necessary to forthwith sell the Suburb C property ("the sale") and the proceeds of the sale shall be distributed as follows:

   a)firstly to pay all costs, commissions and expenses of the sale;

   b)secondly to discharge the mortgage and any other encumbrance affecting the Suburb C property;

   c)the balance to the mother.

1. That the Respondent father is hereby restrained from drawing down upon the Citibank mortgage encumbering the Suburb C property.

1. That the Respondent mother retain all real property situated in the Country D in which she has an interest to the exclusion of the Applicant father and the Respondent mother shall indemnify the father in relation to all rates, taxes, utilities and like outgoings of or with respect to said properties.

1. That the Applicant father retain the property situate at and known as E Street, Suburb F to the exclusion of the Respondent mother and the Applicant father shall indemnify the mother in relation to all mortgage repayments, rates, taxes, utilities and like outgoings of or with respect to the said property.  The respondent mother is to forthwith provide a registrable withdrawal of any caveat or encumbrance lodged on the title to E Street, Suburb F.

1. That the Respondent mother shall indemnify the father in relation to any monies owed by the parties to Ms G.

1. That the Applicant father hereby foregoes any entitlement he may have to monies owed to the parties or either of them by the Respondent mother's sister, and the Respondent mother shall be solely entitled to those funds.

1. That the parties shall forthwith do all such things and sign all such documents necessary to ensure that the funds currently held in the ANZ bank account number … in trust for the child H are held in a bank account which requires the signature of both parties to deal with the account and the funds therein.

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:

a)each 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.  The furniture, personal possessions and like chattels in the Suburb C property are considered to be in possession of the Respondent mother and the furniture, personal possessions and like chattels in the property at E Street, Suburb F are deemed to be in possession of the Applicant father. 

b)monies standing to the credit of the parties in any joint bank account are to become the property of the Respondent mother;

c)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;

d)all insurance policies to become the sole property of the owner named thereon;

e)each party 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;

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

11. That both parties have liberty to apply on short notice in the event that any default or issue arises in relation to any obligation of either party under these orders (including but not limited to the mother's obligations pursuant to paragraph 2 herein).

IT IS ORDERED BY THE COURT THAT

12. All extant financial applications be otherwise dismissed.

13. All extant parenting applications be adjourned for hearing in the Senior Registrar’s Duty List at 10.00 am on 29 October 2013.

NOTATION BY CONSENT

That pursuant to section 81 of the Family Law Act 1975 (Cth) the parties intend these orders shall as far as practicable finally determine the financial relations between them and avoid further proceedings between them with respect to property.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Clarke & Edgerton 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 1475 of 2013

Mr Clarke

Applicant

And

Ms Edgerton

Respondent

REASONS

1. The parties in this case lived in a de facto relationship commencing cohabitation in or about June 2005 and separating finally in October 2012.  There are two children of that marriage, H who is five years of age and J who was born this year.  The father has two children of another relationship, one of whom is 18 months old and the other who was born this year.  The father is not living with the mother of those children. 

2. Each of the parties brought to the marriage a property.  In the case of the mother it was a property in Suburb C which has a value of approximately $1 million and net equity of approximately $590,000, and the husband had a property in Suburb F which is valued at $260,000 and has a net equity of approximately $40,000.  The mother also owns four properties which have total net equity of approximately $170,000 and a transport licence in Country D.  The parties each have a motor vehicle of a similar value and the father owns a motorbike valued at approximately $15,000, and another motorbike valued at approximately $3,000 and shares valued at approximately $4,700. The total net pool is approximately $980,000.

3. They each have credit card debt of approximately $8,000.  The father has superannuation entitlements of approximately $88,000 and the mother has superannuation entitlements of approximately $245.  The father is 41 years of age.  He has been unemployed but recently taken up employment in a family-operated business and earns approximately $600 per week.  The mother is 37 years of age and is engaged full-time in caring for the children of the relationship.   

4. The orders provide for the wife to retain the property in Suburb C which she brought to the marriage, the properties in Country D, the transport licence, her motor vehicle and she will be liable for her own credit card debt.  This represents approximately 73 per cent of the net asset pool, which is to reflect her greater contribution and the s 75(2) factors which, by virtue of her primary care of the children, are weighed in her favour. The father, for his part, will retain his interest in the Suburb F property, his motor vehicle, the motorbikes, his shares, his superannuation and he will be liable for his own credit card debt.

5. I should also note, the parties have entered into a binding child support agreement for the payment of a lump sum of $10,000 for the period from the date of these orders to 31 December 2014 and the sum of $10,000 of the value of the property received by the mother is treated as a lump sum credit.

6. I am satisfied in all of the circumstances that it is just and equitable to make the orders sought and that the proposed orders are just and equitable.

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

Associate: 

Date:  22 May 2014