Dentley and Jenith (No 2)

[2013] FamCA 1141

FAMILY COURT OF AUSTRALIA

DENTLEY & JENITH (NO 2) [2013] FamCA 1141

FAMILY LAW – PROPERTY – De facto relationship – application for consent orders – where the parties seek leave to proceed out of time – where the consent orders are in terms of a purported binding financial agreement – hardship to parties if orders not made – satisfied that the orders are just and equitable.

Family Law Act 1975 (Cth) ss 44(5), 90SL, 90SM(4)

APPLICANT: Ms Dentley

RESPONDENT: Mr Jenith

FILE NUMBER: DGC 1314 of 2013

DATE DELIVERED: 4 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 4 October 2013

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

ORDERS

IT IS ORDERED BY THE COURT THAT

1. Leave be granted to the Applicant to commence proceedings out of time.

IT IS ORDERED BY CONSENT THAT

1. Within 60 days of the date of these orders:

   a)   the Respondent will pay to the Applicant the sum of $18,000 to pay out the loan from Esanda to pay for the Applicant’s motor vehicle with the registration number …;

   b)     the Respondent will pay to the Applicant the sum of $7,800 to pay out the Applicant’s current tax liability;

   c)     the Applicant transfer to the Respondent at the expense of the Respondent all her right title and interest in the 4WD motor vehicle with the registration number …;

   d)     the Respondent take all steps and do all things necessary to close the business bank account (account number …) in the name of ‘B’ and he be entitled to any monies in that account;

2. 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 possessions, and like chattels in the real property being deemed to be in the possession of the Applicant or Respondent);

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

   c)     insurance policies remain the sole property of the beneficiary named therein;

   d)     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.

IT IS FURTHER ORDERED THAT

1. The Application for Consent Orders filed 20 May 2013 be otherwise dismissed and the matter removed from the list of pending cases awaiting hearing.

AND IT IS NOTED BY CONSENT THAT
Pursuant to s 81 of the Family Law Act 1975 (Cth) the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dentley & Jenith (No 2) 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: DGC 1314 of 2013

Ms Dentley

Applicant

And

Mr Jenith

Respondent

REASONS

1. This matter was previously listed before me in the Judicial Duty List on 5 September 2013.  On that date I adjourned the matter for hearing this day as, notwithstanding that the applicant had issued an application seeking to have orders made by consent finalising financial matters, she had expressed some reservations about those orders. 

2. The parties in this matter lived in a de facto relationship from March 2006 until March 2011. As referred to in my reasons delivered on 5 September 2013, on 12 June 2012 they signed what was described as a “Financial Agreement pursuant to section 90D of the Family Law Act”.  Upon being made aware that that agreement might not be binding, the applicant filed an Application for Consent Orders on 20 May 2013.

3. Section 44(5) of the Family Law Act 1975 (Cth) (“the Act”) provides that a party to a de facto relationship may apply for an order for property settlement or maintenance or a declaration pursuant to s 90SL of the Act only if the application is made within the period of two years after the end of the de facto relationship. The application for consent orders was made some two months after the end of that two year period. On 3 October 2013 the applicant filed a further affidavit in which she again deposes to the history of the matter, including the fact that before entering into what was purported to be a financial agreement, she obtained legal advice from Moores Legal and entered into that agreement with a view to ending the financial relationship between she and the respondent on the basis of that advice.

4. The applicant further deposes that she had little by way of assets at the commencement of the relationship, that she and the respondent have no children of that relationship, and she makes reference to the fact that the respondent is some 12 years older than she is.  She deposes and submits that I should make the orders by consent that are proposed on the basis that they reflect what was originally intended and has to a large extent been given effect to by way of that financial agreement, together with the additional requirement that the respondent pay out her car loan and her income tax liability, and that this represents a just and equitable division of the property between them.

5. The financial history of the relationship, including their respective financial positions at the commencement of cohabitation, is set out in some detail in the Financial Agreement dated 12 June 2012, which is annexed to the Statement of Agreed Facts which accompanied the application for consent orders.  Each of the applicant and respondent have filed statements of financial circumstances in relation to their present financial positions. 

6. The respondent was born in 1942 and is now 70 years of age.  He continues to be employed as an insurance agent.

7. The applicant was born in 1955 and is now 58 years of age.  She is in a de facto relationship and she and her new partner are the proprietors of a shop. 

8. At the commencement of the parties’ relationship, the respondent owned a property at C Street, Suburb D, which had an estimated value of $320,000 and was subject to a mortgage of approximately $115,000.  He also owned a property at E Street, Suburb D which had an estimated value of $375,000 and was subject to a mortgage of approximately $2,400.  That property is now worth approximately $400,000 and is subject to a mortgage of $320,000.

9. At the commencement of cohabitation, the applicant owned a Ford Falcon motor vehicle, which she estimates was valued at $6,000, and had approximately $20,000 in the bank.  During the relationship, the parties purchased the property at F Street, G Town for $892,000.  The respondent borrowed approximately $323,000, secured against the property at C Street, Suburb D.  The applicant contributed approximately $20,000 to the purchase and the parties borrowed the balance of the funds from friends and family and have since repaid those moneys. The property at C Street, Suburb D has been sold and the mortgage, which primarily related to the acquisition of F Street, repaid. 

10. During the relationship the parties also set up a business, trading as ‘B Pty Ltd’.  This operated as a partnership but there was no formal partnership agreement.  The parties agree that the F Street property and the business together have a value of approximately $720,000 and there is a mortgage of approximately $560,000.

11. The terms of the purported financial agreement provided that the respondent pay to the applicant the sum of $80,000 and that contemporaneously with that payment she would do all things and sign all such documents as might be required to transfer to the respondent at his expense all her right, title and interest in both the F Street property and the business.  She was to otherwise retain her motor vehicle, savings of some $30,000, which she has acknowledged receiving, and a second motor vehicle.  The orders the parties now seek me to make take into effect the fact that that agreement has since been implemented and further provide for the respondent to pay out the loan on the second motor vehicle and pay a further sum of some $7,800 to meet the applicant’s current tax liability within 60 days of the date of those orders.

12. Whilst the parties have to a large extent given effect to the terms of the agreement, they both seek the finality of orders being made by this Court in circumstances where the agreement they entered into, one might think through no fault of their own, is not binding. On that basis, I am satisfied that hardship would be caused to one or both of them in the event that leave were not granted to the applicant to apply to have the orders made by consent. I note that they both seek that leave be granted. I am also satisfied in all of the circumstances of this case that it is just and equitable to make the orders and, having regard to the matters I must consider pursuant to s 90SM(4) of the Act, that the orders proposed by the parties are in all of the circumstances just and equitable. On that basis, I propose to make the orders, subject to minor amendments.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 4 October 2013.

Associate: 

Date:  18 September 2014