DOLCI & DOLCI
[2009] FMCAfam 1247
•16 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOLCI & DOLCI | [2009] FMCAfam 1247 |
| FAMILY LAW – Property – wife consenting against legal advice – court satisfied to accept consent – just and equitable. |
| Family Law Act 1975, ss.79(2), 75(2) |
| Applicant: | MS DOLCI |
| Respondent: | MR DOLCI |
| File Number: | ADC 2174 of 2008 |
| Judgment of: | Kelly FM |
| Hearing date: | 16 November 2009 |
| Date of Last Submission: | 16 November 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 16 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Croydon |
| Solicitors for the Applicant: | Croydons |
| Counsel for the Respondent: | Mr C Swan |
| Solicitors for the Respondent: | Swan Lawyers |
ORDERS
By consent order in terms of Minutes of Order as signed by me this day.
IT IS NOTED that publication of this judgment under the pseudonym Dolci & Dolci is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2174 of 2008
| MS DOLCI |
Applicant
And
| MR DOLCI |
Respondent
REASONS FOR JUDGMENT
In this matter I am asked to make orders by consent regarding property settlement proceedings between the parties. It is well understood that even when making orders by consent, the Court must be satisfied that the proposed orders are just and equitable.
I have now heard extensive submissions from counsel, particularly Ms Croydon on behalf of the wife. Ms Croydon says that there are inaccuracies in the preamble and recitals set out in the Minutes of Order, a view shared by the wife’s Counsel, Mr Berman. Ms Croydon is therefore concerned that the ultimate division of assets is to her client’s financial disadvantage, and does not reflect the percentage split spelt out in paragraph 2(a) of the recitals.
In the circumstances I have heard briefly from Mr Swan regarding some of the issues and concerns raised by Ms Croydon. I also considered it was appropriate to hear from the wife directly regarding her consent to these orders.
The wife is aware of the concerns expressed by Ms Croydon and Mr Berman. Nonetheless she informs the court clearly that she is choosing to give her consent to the minutes of order today. There is no suggestion of duress or fraud. Ms Dolci has outlined her reasons why she is consenting. She referred to the improved parenting dynamic that exists between the parties at present. She considers that bringing these financial matters to a conclusion will provide an ongoing benefit to her in helping to preserve this more cooperative parenting relationship between the parties in the longer term. While she understands that if the matter proceeded to trial there may be a different and more financially advantageous outcome for her, she does not wish to take that course.
I have considered all of the submissions this morning. Taking into account my knowledge of the file and the parties’ overall circumstances, financial and otherwise, I am satisfied that it is appropriate to make the orders as sought today and that the orders are just and equitable.
The wife is choosing to proceed on certain values and financial information notwithstanding advice to the contrary. Indeed Ms Dolci indicated that she considers the information set out in the recitals is generally accurate. She is choosing to consent to these orders notwithstanding advice to the contrary. At the end of the day she is choosing to place greater weight on other factors that may fall within section 75(2) rather than upon a strict financial approach.
The emotional cost of proceeding to trial and the impact upon the future parenting dynamics are matters that only the client herself can weigh up. If Ms Dolci chooses to place greater weight upon these matters than the Court might, then that is her right, notwithstanding it may be to her financial disadvantage. Having heard Ms Dolci and having heard Ms Croydon as counsel, it seems to me that the court should not lightly disregard a party’s capacity to receive sound and properly constructed legal advice, but nonetheless proceed to reach a different conclusion and consent to a different settlement.
As discussed, I consider it is appropriate to vary the preamble and recitals to reflect the concerns expressed by Ms Croydon and to make it clear that the wife is giving her consent to these orders notwithstanding that advice. In making these orders I note the terms of the binding child support agreement signed by the parties today. I now make orders by consent in terms of the Minutes of Order tendered this day.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Kelly FM
Associate: K. Fedele
Date: 24 November 2009
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