Cummings and Cummings

[2008] FamCA 731

FAMILY COURT OF AUSTRALIA

CUMMINGS & CUMMINGS [2008] FamCA 731

FAMILY LAW – PROPERTY SETTLEMENT – Final orders – S79(2) Just and equitable though wife receives majority of assets

Family Law Act 1975 (Cth)

APPLICANT: MS CUMMINGS

RESPONDENT: MR CUMMINGS

FILE NUMBER: MLC 909 of 2007

DATE DELIVERED: 19 AUGUST 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 19 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS AGROTIS

SOLICITOR FOR THE APPLICANT: A. AGROTIS & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR TEASDALE

SOLICITOR FOR THE RESPONDENT: KENNA TEASDALE

ORDERS

IT IS ORDERED BY CONSENT:

CHILDREN’S AND PARENTING ORDERS

1. THAT the interim Orders made by Registrar Hunt on 26 February 2007 be discharged.

2. THAT the husband and the wife have equal shared parental responsibility for decisions about the long term care, welfare and development of the children J born … March 1996 and M born … May 2003.

3. THAT the child J spend time with the husband as follows:

   a)during school terms for two (2) weekends out of three from 7:00 p.m. Friday to the commencement of school on Monday commencing 2 March 2007 save that if Mother’s Day occurs on a weekend when J would be with the husband such time will be suspended from 10:00 a.m. Mother’s Day to Monday morning;

   b)for half of the end-of-term school holidays as agreed and failing agreement the first half subject to the husband being available full time to care for J;

   c)on Father’s Day from 10:00 a.m. to the commencement of school the following Monday;

   d)as may be further or otherwise agreed between the parties from time to time.

   and otherwise live with the wife.

4. THAT the child M spend time with the husband as follows:

   a)during school terms for two (2) weekends out of three (3) being from 1:00 p.m. Saturday to 6:00 p.m. Sunday commencing 3 March 2007 save for Mother’s Day;

   b)on Father’s Day from 10:00 a.m. to 6:00 p.m.;

   c)as may be further or otherwise agreed between the parties from time to time.

5. THAT the school uniform of J will be provided by the wife to the husband on weekends when J spends time with the husband.

6. THAT the husband be responsible for collecting the children from the wife’s place of residence and returning them to the wife’s place of residence or school as appropriate.

7. THAT weekend cycles of time spent are suspended during school holiday period.

8. PURSUANT to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

PROPERTY ORDERS

1. THAT the husband within sixty (60) days sign all documents and do all such acts and things as are necessary to transfer to the wife at her expense as to costs, fees and duties all his right, title and interest in the property situate at and known as C in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“C”) such transfer to be free of any mortgage encumbrance.

2. THAT the husband assume the responsibility and the liability and indemnify the wife against all payments pursuant to the mortgage registered number … to Permanent Custodians Limited over the C property and forthwith take all steps necessary to discharge the said mortgage to the intent that the wife receives the said property unencumbered by any mortgage encumbrance.  

3. THAT pending the transfer in Order 9:

   a)the wife have the sole right to occupy the C property;

   b)the parties hold their respective interests in the C property upon Trust pursuant to these Orders; and

   c)neither party further encumber the C property without the consent to writing of the other party.

4. THAT the wife sign all documents and do all such acts and things as are necessary to transfer to the husband and further sign all documents and do all such acts and things as are necessary to cause her parents, Mr and Mrs L to also transfer to the husband at the husband’s expense as to costs, fees and duties all their right, title and interest in the property situate at and known as D in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“D”) such transfer to be subject to the mortgage registered number … to Bendigo Bank Limited for the which the husband assume the responsibility and the liability and indemnify the wife.

5. THAT the husband contemporaneously with the transfer of D into his name and upon the transfer of the V property to the wife pay to the wife and her parents, Mr and Mrs L the sum of $20,000 each (a total sum of $60,000) in full and final settlement of any right, title and interest they may have in relation to the said property.

6. THAT the husband retain all of his right, title and interest in the properties situate at and known as A and B in the State of Victoria being the whole of the land more particularly described in Certificates of Title Volume … Folio … and Volume … Folio … respectively (“A and B”) such transfers to be subject to the existing mortgages in relation thereto for which the husband shall assume the responsibility and the liability and indemnify the wife.

7. THAT unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:

   a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders, the furniture, personal effects and like chattels in the C property being deemed to be in the possession of the wife;

   b)the husband retain his interest in the company W Pty Ltd (ACN …), G Pty Ltd (ACN …), and the Cummings Family Trust;

   c)monies standing to the credit of the parties in any joint bank account are to become the property of the husband;

   d)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

   e)insurance policies remain the sole property of the owner named therein;

   f)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;

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

8. THAT the Applications of the wife and the husband respectively filed on the 29^th of January 2002, amended and filed on the 22^nd of March 2007, and on the 3^rd of July 2007 be otherwise dismissed.

IT IS DIRECTED:

1. THAT all proceedings be removed from the pending cases list and the docket of Justice Young and that the Minutes of Consent Orders remain on the Court file.

2. THAT a sealed copy of this Order be served on the wife’s parents Mr and Mrs L by the wife’s solicitor.

3. THAT the extempore Reasons for Judgment herein be transcribed and remain upon the Court file and be made available to all parties.

THE COURT NOTES:

1. THAT the said Mr and Mrs L have consented to paragraph 12 and have authorised their daughter the Applicant wife, to convey their consent to this Honourable Court.

2. THAT the parties intend these Orders shall as far as practicable finally determine the financial and other relationships and avoid further proceedings between them.

IT IS NOTED that publication of this judgment under the pseudonym Cummings & Cummings is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 909 of 2007

MS CUMMINGS

Applicant

And

MR CUMMINGS

Respondent

REASONS FOR JUDGMENT

1. The matter of Cummings is before me as one of my defended docketed cases.  Mr Teasdale, solicitor, appears for the husband; Ms Agrotis, solicitor, appears for the wife.  Both parties are in court. 

2. This matter was first before the court on children and parenting issues on 26 February 2007, where interim orders were pronounced by a Registrar.  Those orders remain current and provide for equal shared parental responsibility for the two children of the marriage, J, who is 12 years of age, and M, now five years of age.  The orders provide for time to be spent by the husband with both children. 

3. What I am asked by both solicitors and with the consent of their clients is to make those orders final and I have accordingly indicated to Mr Teasdale that when all orders are engrossed, if those interim orders are discharged and orders replicating the outcome or updated, as the parties may now agree, are provided in the orders, I will execute those amended orders as final children and parenting orders.  As to property and financial matters, that was the issue continuing before me.   Again, there has been a significant level of out-of-court discussion and I am presented with consent orders. 

4. I have been given an overview of the marriage, the contributions of the parties and the current work circumstances of the husband.  The asset pool is relatively modest.  It is proposed that the wife take sole registered ownership of the property at C, and that will be the primary residence for herself and the two children who attend, or will attend, V School.

5. There is another property at D, and that property is to be transferred to the husband, subject to the Bendigo Bank liability, but only upon the payment by the husband to each of the wife and her parents of a sum of $20,000 - that is a total payment of $60,000, which moneys the husband has organised to borrow.

6. There are other properties outside of those described in the minutes.  The husband is to retain those properties, though there is modest equity therein.  The husband retains the corporate structures and the trust, as provided for in the orders.

7. The overview of what solicitors have advised me is that the wife takes property or assets to a value of no less than $450,000.   On the other hand, the net value of property received by or otherwise held by or on behalf of the husband is probably less than $50,000, including his superannuation.  The husband is 60 and remains in employment as a project manager, now working in Brisbane.  He will soon have access to superannuation, but not until he ceases employment.  In his present financial circumstances and given his payments for the children and their education, retirement is simply not an option for him.  He will be compelled to work.

8. On face value, the disparity of the division of assets is such that normally I would be concerned as to the justice and equity of the case.  The wife is clearly receiving the great majority of assets.  The husband retains a significant financial responsibility for the children, though of course I understand there are many other expenses for the children and all of the day‑to‑day costs and expenses of upbringing which the wife must pay.

9. I do understand the husband has a very experienced solicitor advising him.  That is one of the discretionary matters that will cause me to accept these minutes of order and make final property and financial orders.  Mr Teasdale has fairly highlighted the husband's concern over the payment of the additional $60,000 for the D property, but he is aware of the issue and has consented. 

10. Within the concept of justice and equity, as provided for in section 79(2) of the Family Law Act 1975, there remains a generous ambit of discretion. That is endorsed by the Full Court in numerous reported cases. My balance in this case is to determine whether the husband accurately knows the settlement that is on the table, what it is he is accepting and whether that falls within the justice and equity of a family with two young children who need to be educated, who need a secure home and accommodation.

11. On balance and after some reflection and with the urgings of Mr Teasdale and in the presence of his client, I conclude it is just and equitable to make these orders final.  Finality means that these proceedings are concluded, will be removed from my docket of defended cases and all proceedings will be dismissed.  That achieves finality and I emphasise to the husband who is in court that he will be unlikely to ever overturn the finality of these orders.

12. That being said, I in no way criticise the husband.  It seems to me that he has taken a significant step to provide for his children.  The good news in this case, unlike so many other cases, is the parties can talk about the children; there is a meaningful relationship that both parents have with the children and hopefully that will continue.

13. I therefore conclude on the basis of submissions the consent of the parties and that which I have read, that these orders are just and equitable pursuant to section 79(2) of the act and I make these orders accordingly. I will have a transcript of these extempore reasons taken out, placed upon the court file and made available to all parties.

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

Associate: …

Date: