Dobson and Carrier

[2008] FamCA 670

FAMILY COURT OF AUSTRALIA

DOBSON & CARRIER [2008] FamCA 670

FAMILY LAW – PROPERTY SETTLEMENT – s 79(2) Just and equitable

Family Law Act 1975 (Cth)

APPLICANT: MR DOBSON

RESPONDENT: MS CARRIER

FILE NUMBER: DGC 693 of 2008

DATE DELIVERED: 8 AUGUST 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 12 AUGUST 2008

REPRESENTATION

FOR THE APPLICANT: IN PERSON

FOR THE RESPONDENT: IN PERSON

ORDERS

IT IS ORDERED BY CONSENT

Property Orders

1. THAT until the youngest child P born … September 1997 reaches 21 years of age, being … September 2018 (“the expiry date”) the former matrimonial home situate at and known as E property being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the real property”) is not to be sold, save and except by agreement between the parties.

2. THAT after the expiry date the real property be forthwith sold altogether out of court (“the sale” and upon completion of the sale the proceeds of the sale be applied:

   (a)        first to pay all costs, commissions and expenses of the sale;

   (b)secondly to discharge the mortgage and any other encumbrance affecting the real property;

   (c)thirdly the balance then remaining be divided in the proportions of:

   (i)45 per centum (45%) thereof to the husband;  and

   (ii)55 per centum (55%) thereof to the wife.

3. THAT pending the completion of the sale in accordance with order 2 above:

   (a)the wife have the sole right to occupy the real property and that during such right of occupation the husband and wife each pay half of all instalments pursuant to the mortgage registered number … with the St. George Bank and all rates and taxes and like apportionable outgoings of the real property as they fall due;

   (b)the parties hold their respective interests in the real property upon trust pursuant to these orders;  and

   (c)neither party encumber the real property without the consent in writing of the other party.

4. THAT by consent and in consideration of payment of an agreed sum either the husband or wife may purchase the other party’s share of the real property and indemnify the other party against all payments and liabilities pursuant to the mortgage.

5. THAT the husband and wife agree that any future relationships that either of them commences will not affect these orders until the expiry date.  However, if the wife commences a new relationship and her new partner lives with her in the real property, then he must pay rent at the market price rate and such sum is to be paid into the mortgage account.

6. 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 possessions and like chattels in the real property being deemed to be in the possession of the wife);

   (b)monies standing to the credit of the parties in any joint bank account are to be divided equally between the parties;

   (c)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other except if either party dies before … September 2018 the deceased’s superannuation benefits are to be used to reduce the mortgage;

   (d)insurance policies remain the sole property of the owner named thereon;

   (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.

THE COURT NOTES that the parties intend these orders shall as far as practicable finally determine the financial relationship between them and are made to avoid further proceedings between them.

Parenting Orders

1. THAT the wife and husband have equal shared parental responsibility of the children namely L born … November 1995 and P born … September 1997.

2. THAT the children live with the wife.

3. THAT the children spend time with the husband as follows:

   (a)every alternate weekend and during week days as agreed between the parties;

   (b)for one half of each of the school holidays including the long Christmas vacation such period to be agreed between the parties but if there is no agreement the husband to spend time with the child or children for the first half of the school holidays;

   (c)from 5.00 p.m. Christmas Eve until 3.00 p.m. Christmas Day in 2008 and each alternate year thereafter;

   (d)from 3.00 p.m. Christmas Day until 5.00 p.m. Boxing Day in 2009 and each alternate year thereafter;

   (e)such further or other times as agreed between the parties.

Specific Issues Orders

1. THAT the wife have sole responsibility for making decisions about the children’s day to day care, welfare and development when the children are in her care.

2. THAT the husband have sole responsibility for making decisions about the children’s day to day care, welfare and development when the children are in his care.

3. THAT the wife and husband have the equal shared parental responsibility to make decisions in relation to the children’s future welfare and development including:

   (a)        education, including primary, secondary and tertiary;

   (b)        all health care, medical and dental issues;

   (c)        religious observances;

   (d)        sporting, cultural and social activities.

   (e)        travel.

IT IS FURTHER ORDERED

1. Pursuant to s 62B and s 65DA, 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 parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

2. THAT the minutes of consent orders remain on the court file.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS NOTED:

A.THAT the parties intend that should they re-partner or remarry they will each do all acts and things that are reasonable to ensure that their new partner/spouse does not claim any legal or equitable right or entitlement in the real property.

B.THAT the court referred the parties to the Legal Aid Duty Solicitor for advice this morning and arising therefrom the parties sought to delete clause 6(f) from these orders.  That has been done but the original minutes of orders as presented by the parties to the court are to remain upon the court file as evidence of the prior agreement.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 693 of 2008

MR DOBSON

Applicant

And

MS CARRIER

Respondent

REASONS FOR JUDGMENT

1. In the matter of Dobson and Carrier the husband and wife appear in person.  They have negotiated minutes of consent orders.

2. The matter first came before Registrar Windebank on 28 April 2008.  At that time the Registrar declined to make the orders because she concluded that they would not finalise the financial relationships between the parties and that the orders would be extremely difficult to enforce in any future year. 

3. The matter was therefore adjourned to my court, first on 9 July 2008, where I required financial documentation to be filed, and subsequently today. 

4. The Form 13 financial statements of both parties are before the court and they form part of the fabric of evidence that I have considered. 

5. I have taken the opportunity to highlight to the parties the effect of what was to be clause 6(f) of the orders, that is, the severance of joint tenancy forthwith upon the making of these orders.

6. These orders are unusual in their construction.  The parties intend for the wife to live in the E home until the youngest child turns 21 years of age.  Thereafter the home will be sold and the balance divided as per paragraph 2(c) of the orders.

7. The severance of the joint tenancy immediately would have meant that each party had a 50 per cent entitlement to the property and that would have formed part of their estate or part of their asset for any subsequent matrimonial proceeding between either of them and their potential new partner or spouse. 

8. I have referred the parties to the duty solicitor and they have now come back with a request that clause 6(f) be struck out and that a notation be added to the order.  The parties would have it noted that should either of them remarry or repartner, they would intend to exclude that new partner from any legal or equitable claim or right to claim against E.

9. The court cannot, of course, oust the jurisdiction in any subsequent matrimonial proceeding, be it in a marriage or a de facto relationship of appropriate standing.  I will, however, have that notation added to these orders. 

10. I again repeat that the orders are somewhat unusual, but I am satisfied that both parties have taken advice.  They have had many months to reconsider their circumstances and these are the orders that they deem to be just and equitable in their own individual circumstances.

11. Having regard to the financial material now filed and at the request of the parties, I will conclude my discretionary consideration of this case with the finding that the orders are just and equitable pursuant to s79(2) of the Act.  That finding will bring finality to the matter. 

12. I will have the orders redrafted by the court and forwarded to the parties at their recorded residential addresses.

13. These reasons will be taken out and placed upon the court file and made available to the parties.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: