DUNCAN & GREY

[2015] FamCA 613

FAMILY COURT OF AUSTRALIA

DUNCAN & GREY [2015] FamCA 613

FAMILY LAW – PROPERTY SETTLEMENT – Application for consent orders made out of time – leave granted pursuant to s 44(6) of the Family Law Act 1975 (Cth) to proceed after the standard application period – whether it is just and equitable to make orders in the terms of the minute of consent orders – final orders made in terms of the consent application

Family Law Act 1975 (Cth)

APPLICANT: Mr Duncan

RESPONDENT: Ms Grey

FILE NUMBER: MLC 4619 of 2015

DATE DELIVERED: 8 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 8 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lowe

SOLICITOR FOR THE APPLICANT: MCL Legal

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Stuthridge Legal

Orders

IT IS ORDERED THAT

1. Leave be granted to the Applicant husband to apply after the standard application period has expired for orders pursuant to s 90SM of the Family Law Act 1975 (Cth).

IT IS ORDERED BY CONSENT THAT

1. In relation to the land Lot … on Plan of Subdivision … being the whole of land in folio of the register Volume … Folio … and otherwise known as B Street (‘the property’):

   (a)       that the parties take all necessary steps and execute all necessary documents to cause the property to be sold by private treaty at the earliest possible date with a selling agent to be agreed and at a price to be agreed on between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute or their nominee and that the proceeds of the sale be disbursed as follows:

   (i)payment of agent’s commission and advertising expenses and legal expenses of the sale; and

   (ii)the net balance between the parties as to 50 per cent to the Applicant and 50 per cent to the Respondent;

   (b)       that in the event of the property failing to sell by private treaty before the end of May 2015, that the property listing price be reduced to a price which is not more than $185,000, and that any offer which is at least 90 per cent of the listed price be accepted by the parties subject to any contrary advice received in writing from the selling agent;

   (c)       that in the event of the property failing to sell by private treaty before the end of October 2015, that the property listing price be reduced to a price which is not more than $180,000, and that any offer which is at least 90 per cent of the listed price be accepted by the parties subject to any contrary advice received in writing from the selling agent;

   (d)       that in the event of the property failing to sell by private treaty before the end of May 2016, that the property listing price be reduced to a price which is not more than $170,000, and that any offer which is at least 90 per cent of the listed price be accepted by the parties subject to any contrary advice received in writing from the selling agent;

   (e)       that the farm equipment belonging to the parties including the tractor and tractor implements, block splitter, saw bench, generator, pump(s) and cement mixer be sold in with the property as a condition of the sale;

   (f)       that pending the sale of the property the Applicant shall be entitled to reside therein to the exclusion of the Respondent;

   (g)       that at least seven (7) days before completion of the sale the Applicant shall provide vacant possession of the property removing all items not included in the sale and ensuring that the property is left in a clean and tidy condition; &

   (h)       that pending the sale of the property the Applicant assume liability for and indemnify the Respondent in relation to all apportionable rates, taxes and outgoings of or in relation to the property.

2. Within twenty one (21) days of the date of these Orders the Applicant shall pay to the Respondent’s Solicitor the sum of $15,584.00.

3. Within twenty one (21) days of the date of these Orders the Respondent attend the property at a date and time to be agreed between the parties to collect the items referred to Annexure “A”.

4. The Respondent and Applicant do all acts and things and give all consent and execute all documents and writings necessary to give effect to the orders made herein.

5. In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A to execute such deed or instrument in the name of such party to do all acts and things necessary to give validity to the operation to the deed or instrument.

6. Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any moneys under these or any subsequent orders:

   (a)       Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders;

   (b)       Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

   (c)       Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;

   (d)       All insurance policies are to become the sole property of the owner named hereon;

   (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; and

   (f)       Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

IT IS FURTHER ORDERED THAT

1. All extant applications are dismissed and the matter removed from the list of cases awaiting hearing.

AND THE COURTS NOTES THAT

That the parties agree that as far as it is practicable to do so that the orders are made having regard to the provisions of section 81 of the Act with a view to determining for all time the financial relationship between the parties and avoiding further proceedings between them.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duncan & Grey 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: MLC 4619  of 2015

Mr Duncan

Applicant

And

Ms Grey

Respondent

REASONS FOR JUDGMENT

1. The application before me in the Judicial Duty List today is the applicant de facto husband’s application for consent orders.  The applicant de facto husband and the respondent de facto wife, who I will hereinafter refer to for convenience as the husband and the wife, commenced their de facto relationship in or about 1983 and separated, on the husband’s case, on 9 October 2012 and, on the wife’s case, in February 2013.  Whichever date is the actual date of separation, the application in this case was filed after the conclusion of the standard application period.

2. It is on that basis that the matter is before me today. Section 44(5) of the Family Law Act 1975 (Cth) (“the Act”) provides that a party to a de facto relationship may bring an application pursuant to s 90SM of the Act for property settlement only if the application is made within a period of two years after the end of that relationship. Section 44(6) of the Act provides that the Court may grant a party leave to apply after the end of the standard application period if hardship would be caused to a party if leave were not granted. The husband in this case is 66 years of age. The wife is 59 years of age.

3. There are no children of this relationship.  It is a relatively modest asset pool.  There is a property which is to be sold.  The estimated value of that property is approximately $200,000.  The husband also has approximately $30,000 in a bank account, which he received by way of superannuation entitlements.  The orders in this case propose a fifty-fifty split, which is based upon the sale, although it is submitted there may be some issues with respect to the sale of the property, and a division of the moneys held by the husband in his bank account. Upon the making of the proposed orders the husband is required to pay the wife $15,584.00. The proceeds of sale of the property when it eventually sells are to be divided equally.

4. It is submitted that the parties in this case were negotiating for a significant period of time with a view to resolving this matter, that they stumbled somewhat in relation to a division of the chattels, and it is on that basis that the application was not made within the standard application time.  In this case hardship is not just limited to financial hardship, although in this case it would appear if the orders were not made the wife would not be entitled to receive the $15,584 which she is to immediately receive pursuant to these orders.

5. Hardship, not simply being financial hardship, may be that the parties can simply not end their financial relationship. In this case I am satisfied that I should grant leave to the applicant de facto husband to apply for orders pursuant to s 90SM notwithstanding the end of the standard application period, and I am also satisfied that it is just and equitable in all the circumstances of this case to make orders pursuant to s 90SM and that it is proper in all of the circumstances of this case to make the orders that are sought by the parties.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 8 July 2015.

Associate: 

Date:  29 July 2015