Dayleford and Himmett

[2009] FamCA 851

FAMILY COURT OF AUSTRALIA

DAYLEFORD & HIMMETT [2009] FamCA 851

FAMILY LAW – CONSENT ORDERS

Family Law Act 1975 (Cth)

APPLICANT: Mr Dayleford

RESPONDENT: Ms Himmett

FILE NUMBER: MLF 1048 of 2006

DATE DELIVERED: 31 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 31 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Spicer

SOLICITOR FOR THE APPLICANT: BEILBY POULDEN COSTELLO

COUNSEL FOR THE RESPONDENT: Mr Wilson

SOLICITOR FOR THE RESPONDENT: MACKENZIE & VARDANEGA

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the husband engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That any material produced pursuant to any subpoenae be returned to the recipient of the subpoena.

4. That my reasons for judgment this day be transcribed and be placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1048 of 2006

MR DAYLEFORD

Applicant

And

MS HIMMETT

Respondent

REASONS FOR JUDGMENT

1. This is a matter that was to have been heard by Monteith J who, unfortunately, fell ill, as a result of which it was given to me to commence.  In preparation for that I read all of the file, which I have to concede is voluminous.  Much of the dispute was around what some people might see as relatively modest things but for a farmer, I can understand the dilemma.  The matter has limped along, not helped at times by a variety of problems within the system, and there has been significant registrar involvement. Suffice to say I had the benefit of understanding the background of the matter because I read all of the affidavit material.  I can see in the context of that material where this settlement fits and, as is often the case in property settlement outcomes, the parties will agree to disagree on exactly what they mean.

2. In my view, that does not matter in this particular case because – to use Mr Spicer’s words – this is a pragmatic settlement.  It also has a strong ring of commercial reality about it.  Mr Dayleford and Ms Himmett have both had a traumatic time, not only with the litigation but the fact the financial position has been significantly affected by the rural drought.  That is not something that city people often understand, but with my country background, I do, and I can see how the parties have dealt with that as well.

3. The function of the court has been explained to the parties as to how the decision would be made and I can see again in the settlement that a pathway has been followed, which means that the settlement, from my perspective, is well within the range of what would have been the ultimate outcome in any event.  My task is to say whether or not I think the outcome is fair to both parties, and if so, to declare it just and equitable.  This is one of those cases where I have no hesitation in saying this is a sensible, pragmatic, commercially real settlement, and I have no doubt that it is just and equitable.  The parties are to be commended for taking that final step.  I propose to make orders by consent in terms of the parties. 

4. I mark the minute as an exhibit.  It will be marked Exhibit A.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  10 August 2009