COULTER & JAMIESON

[2016] FamCA 449

FAMILY COURT OF AUSTRALIA

COULTER & JAMIESON [2016] FamCA 449

FAMILY LAW – PROPERTY – Settlement – declaration that a de facto relationship existed made with consent – property settlement orders made by consent

Family Law Act 1975 (Cth)

APPLICANT: Ms Coulter

RESPONDENT: Mr Jamieson

FILE NUMBER: BRC 657 of 2012

DATE DELIVERED: 6 June 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 6 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McDiarmid

SOLICITOR FOR THE APPLICANT: Bruce Legal

COUNSEL FOR THE RESPONDENT: Mr Selfridge

SOLICITOR FOR THE RESPONDENT: Harris Sushames Solicitors

Orders

BY CONSENT IT IS DECLARED

1. Pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between the parties between January 2005 and October 2010.

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER PURSUANT TO SS 90SM(1)(a), (c), (d)(i) OF THE FAMILY LAW ACT 1975 (CTH) THAT

1. Within seven (7) days the Respondent shall do all acts and things and sign all necessary documents to effect a transfer of the property situated at D Street, Suburb E more particularly described as Lot …, SP … County of F Parish of G Title Reference … (“D Street”), to the Applicant free of all encumbrances.

2. The transfer of D Street as outlined in Clause 1 above shall include the car park, if this does not already form part of the title interest.

3. The Respondent is to deliver the D Street property in a vacant and clean and tidy condition and state of repair to the Applicant within seven (7) days of the date of this Order.

4. The Respondent is hereby restrained from: damaging the D Street property; removing any fixtures from the D Street property including but not limited to light fittings, bathroom fittings, kitchen fittings and fixtures, laundry appliances, shower heads, tap fittings or the like.

5. In the event that the Respondent causes any damage to the D Street property, the Applicant shall be reimbursed by the Respondent for any repairs.

6. The Respondent shall deliver to the Applicant all keys and security tags or keys to the D Street property in working order.

7. The Respondent shall be liable for all outgoings for the D Street property including Body Corporate, rates, electricity and management fees up to and including 13 June 2016.

8. Within seven (7) days of the Respondent paying to the Applicant the sum of $46,108.01 in respect of costs in the Supreme Court proceedings, the Applicant shall file a Notice of Discontinuance in the Supreme Court of Queensland proceedings No. … of 2013.

9. Both parties will otherwise retain all other property, goods, title or interest currently in their respective possession and shall indemnify the other party in that respect.

10. Upon certification that the Respondent has complied with Clause (4), (5) and (6) of this Order, the Applicant will remove Caveat No. 714201444 and, for this purpose, the Applicant shall appoint a building inspector to conduct:

    (a)a preliminary inspection as soon as possible to assess the state of the property;  and

    (b)a final inspection on 13 June 2016,

    and the Respondent shall enable access to the D Street property for this purpose.

11. In the event that the Applicant, the Respondent or either of them fails, refuses or neglects to execute any document or do anything necessary to give effect to the Orders above, then pursuant to s 106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Australia shall be and is hereby appointed to execute any deed or instrument in the name of the party, and do all acts and things necessary to give validity to the operation of the deed or instrument.

12. It is deemed that there is a failure or neglect to sign if the party to whom the documents are submitted has not signed them by the due date for settlement specified herein and the affidavit of the party not in default testifying to this breach is deemed sufficient evidence of this breach.

NOTATION:

A.It is noted that, for the purpose of the inspection referred to in Clause (10)(a) of this Order, the parties are agreed that the first inspection of the premises shall be undertaken by Mr H (from Queensland Building Inspections) at 4.00 pm on 6 June 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Coulter & Jamieson 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 BRISBANE

FILE NUMBER: BRC 657  of 2012

Ms Coulter

Applicant

And

Mr Jamieson

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I take into account the evidence that each of the parties have relied upon in the proceedings.  I note, of course, that, as is so often the case in matters which reach a final hearing, there remained and, perhaps still remain, a large number of factual disputes between the parties.  Any compromise between parties in such a circumstance reflects the reality of a compromise in circumstances such as this.  

2. I take into account the contributions made by each of the parties during their relationship, a relationship which exceeded five years in duration - something which today is acknowledged by each of them in the terms of the declaration that it is sought that I make by consent.

3. I am certainly satisfied on the evidence before me that there is an evidentiary basis upon which such declaration can be made and, for that reason I declare that, pursuant to s 90RD of the Family Law Act 1975 (Cth), a de facto relationship existed between the parties between January 2005 and October 2010.

4. That declaration having been made and it having been clearly established on the evidence of each of the parties that the de facto relationship which existed between them has broken down, the Court is empowered, provided it is satisfied that the terms of orders are just and equitable, to make orders pursuant to s 90SM of the Act.

5. I take into account the variables that exist in the affidavit material relied upon by each of the parties.  I take into account the potential findings available to the Court in relation to a number of those variable matters. 

6. I take into account, in my determination that the terms of the order as signed by the parties (as amended during the course of discourse today with Counsel who appear on behalf of each of them) are, in fact, just and equitable, and that it is, in fact, just and equitable to make the order sought that, in doing so, the parties bring to an end the litigation that has existed between them for a number of years - not only in this Court, but in the Supreme Court of Queensland. 

7. I also take into account, in my conclusion that the terms signed by the parties and sought to be made as orders by consent are just and equitable, that there is no evidence before the Court in relation to the diminution of the value of the previously jointly owned property: in the sense that it is impossible to determine, it seems to me, the extent to which the parties (or either of them) contributed to that diminution and/or to distinguish this from the potential consequences of market forces, when regard is had to the time of its acquisition and the time at which it was sold. 

8. For these reasons very shortly given, I am therefore persuaded that it is just and equitable to make the orders agreed by the parties as reflected in the documents signed by them and in respect of which each of their Counsel informs me there is consent.

9. For those reasons then, I make orders in terms of the Minute (as amended during discourse and as supplemented by the additional and/or amended second page of the bundle of documents) as signed by me and placed with the papers.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 6 June 2016.

Associate:                 

Date:    6 June 2016