COTTER & COTTER

[2015] FamCA 840

FAMILY COURT OF AUSTRALIA

COTTER & COTTER [2015] FamCA 840

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – final property orders made by consent

Family Law Act 1975 (Cth)

APPLICANT: Ms Cotter

RESPONDENT: Mr Cotter (deceased) by his legal personal representatives Ms Stott, Ms B Cotter and Mr Cotter-Stott

FILE NUMBER: MLC 10174 of 2013

DATE DELIVERED: 30 September 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 30 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bradford

SOLICITOR FOR THE APPLICANT: McDonald Slater & Lay

COUNSEL FOR THE RESPONDENT: Ms Johnston

SOLICITOR FOR THE RESPONDENT: Kenna Teasdale Lawyers

Orders

IT IS ORDERED BY CONSENT

1. That Mr Cotter-Stott as Legal Personal Representative for the late Mr Cotter be joined as a Respondent to these proceedings.

2. That upon receipt of the private ruling from the State Revenue Office the Respondents do all such acts and things and sign all such documents as may be necessary to register the transfer the property situate at and known as C Street, Suburb D in the State of Victoria and more particularly described in Certificate of Title Volume … Folio … (“the Suburb D property”) to transfer the Applicant (“the transfer”).

3. That the Respondents be responsible for and will pay all costs, fees and duties associated with the transfer, including but not limited to any stamp duty and any taxation consequences of the transfer.

4. That the Respondents retain, to the exclusion of the Applicant, the household chattels and personal possessions currently located in the Suburb D property, save as otherwise agreed to in writing between the parties. 

5. That pending the transfer, the Respondents will be responsible for all costs, rates and associated outgoings associated with the Suburb D property, and upon the transfer the Applicant will thereafter be responsible for all costs associated with the said property.

6. That unless otherwise provided for in these Orders and save for the purposes of enforcement:

   a.   each party will be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the ownership, possession or control of such party as at the date of these Orders;

   b.   monies standing to the credit of the parties in any bank account will become the property of the party in whose name the account is registered;

   c.   each party foregoes any claim they may have to any superannuation, life insurance or work related benefits belonging to or earned by the other;

   d.   all insurance policies remain the sole property of the owner named thereon; and

   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.

7. That the Applicant be provided with vacant possession of the Suburb D property and all keys upon the making of this Order.

8. All extant applications be otherwise dismissed and the matter removed from the list of cases awaiting hearing.

AND IT IS NOTED THAT

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

B.The parties intend to execute a Licence Agreement to allow the Applicant to occupy the Suburb D property forthwith, pending the transfer of the property pursuant to these Orders.

C.The Applicant acknowledges that these Orders represent the final distribution of property between her and the late Mr Cotter, and on the basis of the provision made for her in these Orders, the Applicant will not commence Supreme Court proceedings pursuant to Part  IV of the Administration and Probate Act 1958 (Vic).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cotter & Cotter 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 10174  of 2013

Ms Cotter

Applicant

And

Mr Cotter (deceased) by his legal personal representatives Ms Stott, Ms B Cotter and Mr Cotter-Stott

Respondent

REASONS FOR JUDGMENT

1. The husband, who is now deceased, and the wife were in a relationship for some 26 years, 16 of which they were married.  The parties separated in or about May 2008, and the wife issued proceedings in May 2014.  The husband passed away on 23 May 2014.  Probate was granted in October 2014.  The husband’s will named three executors, Ms Stott, Ms B Cotter and Mr Cotter-Stott. They are the legal personal representatives of the husband.  As a consequence of these orders Mr Cotter-Stott will be substituted for the husband as a party to these proceedings. Both Ms Stott and Ms Cotter were previously substituted for the husband in the proceedings.

2. The value of the property in the estate is approximately $4.4 million.  The wife has property in her name, including superannuation of some $700,000.  The orders that I am being asked to make provide for the transfer of a property valued at approximately $1.75 million to the wife, as a consequence of which she will receive or retain property with a value of approximately $2.5 million, or, in round figures, about half of the available pool of property.  The executors are the child of the marriage, Ms B Cotter, the husband’s sister, Ms Stott, and his nephew, Mr Cotter-Stott. 

3. A claim has been made against the estate of the husband which is being defended in the Supreme Court. The claimant has been notified of the proposed orders, has not sought to intervene in these proceedings and I am informed does not oppose the making of the orders.  The parties ask that I make these orders and say that it is just and equitable that there should be an alteration of the interests in property.  Clearly, where there is a large preponderance of the assets in the estate – or, if the husband had not passed away, in his name – it would have been just and equitable to make order adjusting the parties interests in property, and I am satisfied, notwithstanding that the husband is now deceased, that it is still appropriate to make the orders the parties seek.

4. These are in my view orders that would be in the range of orders the Court would have made even if the husband had not passed away.  In all of the circumstances I am satisfied that it is just and equitable to make the orders and that the orders proposed are themselves just and equitable. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 30 September 2015.

Associate: 

Date:  9 October 2015