ESPERANZA & GIMENEZ

[2012] FamCA 1102

FAMILY COURT OF AUSTRALIA

ESPERANZA & GIMENEZ [2012] FamCA 1102

FAMILY LAW – Property

Family Law Act 1975 (Cth)

APPLICANT: Ms Esperanza

RESPONDENT: Mr Gimenez

FILE NUMBER: MLC 9229 of 2012

DATE DELIVERED: 20 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 December 2012

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the husband pay to the wife $21,477.80 on or before 4.00pm on 28 December 2012.

2. That the application of the wife filed 10 December 2012 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Esperanza & Gimenez 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 9229 of 2012

Ms Esperanza

Applicant

And

Mr Gimenez

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case that was filed on 10 October 2012 by Ms Esperanza – to whom I shall refer in these reasons as the wife.  The respondent is her former husband, Mr Gimenez.  Despite the fact that the application in the case was filed on 10 October it appears not to have been served until only some short time ago.  No explanation has been given for that delay.  Her husband has attended today without representation and has not filed any documentation, but by a process of discussion it becomes clear what the picture really is and the wife has accepted a sum of $21,477.80 in full and final settlement of all obligations under the orders to which I shall now refer. 

2. In October 2000, final orders appear to have been made resolving all property proceedings between the parties. That was at a time when this court did not have the power under the Family Law Act to divide superannuation entitlements. As was common in those days, an order was made that upon the husband receiving his superannuation payment, he was to make a payment to the wife. I shall come back to that.

3. In addition to that obligation the husband was to transfer what appears to have been the former matrimonial home to the wife.  It is still the home that she lives in.  She was to take over the responsibility of the mortgage.  Another order was that within 21 days of the making of the orders, the husband was to sell all of his shareholding in Telstra and the order acknowledged he has an employee holding, and he was to pay the net proceeds to the wife. 

4. The application before me today seeks a number of orders, most of which are not of any great consequence.  The first is that the wife seeks an order that having complied with the transfer of the home, she incurred $135 government fee.  She asserted that the words of paragraph one of the orders were such as to enable a court to read that the husband was responsible for that particular payment.  I am not prepared to conclude that that is what the order said or meant, but more importantly, that obligation fell upon the husband twelve years ago.  For whatever reason, and it seems hard to accept that the husband could not be found, nothing was done about that order.  Accordingly, even if I was wrong about my interpretation of the orders I would decline to make the order for that sum.

5. The second order sought by the wife is that the husband sell his B Pty Ltd shares and that he pay the difference in share price as at October 2000 and now.  Again, for reasons which are not clear on the wife’s evidence, let alone any evidence at all from the husband, that did not happen until only some days ago and the net proceeds of the sale of a bundle of shares was $1477.80, of which some money came from 15 shares that the husband received as an employee entitlement as late as 2009.  Not withstanding that he probably did not have the obligation to provide the sale proceeds of those, he has agreed to do so.

6. There is no evidence before me as to what the share price was in 2000 – other than some comments from the bar table and I am not prepared to take those evidence.  But, I do now know what they sold for.  For the same reasons that I have just set out above I can not see why an interest component should be added to any such entitlement having regard to the delay of 12 years.

7. The final order was that the husband pay to the wife $20,000 pursuant to paragraph seven of the original orders.  It is quite clear from the evidence that the wife does not know whether or not the husband has received his superannuation.  The husband says from the bar table that he is 53 years of age, and although he has left B Pty Ltd he does not have his superannuation entitlement.  I think I can take some judicial notice of the fact that people at 53 years of age are normally not eligible to collect their superannuation.

8. Paragraph 7 of the orders at 2000 said that:

   Upon the husband resigning from [B Pty Ltd], being made redundant or having his employment terminated, he was to pay his wife $20,000.

   However, that is conditional upon the money coming “out of any superannuation payment to be made to him”.  I am not at all clear what the draftsman intended but in any event it was clear that it was intended to be from his superannuation entitlements.  Technically speaking therefore, the order could not now be enforced because he does not yet have his superannuation.

9. In an unusual twist however, the husband desires to end all of these proceedings and has agreed to pay $20,000 out of the entitlement that he received in his redundancy payment, and he will make that payment within – just on a week.  The wife did make comment about wanting interest, but having regard to the drafting of paragraph seven, I would not have the power to alter the order to say that it was $20,000 plus interest.  In my view the sensible compromise was that which I suggested and the parties have now adopted, and that is the payment of $21,477.80 to be made on 28 December 2012 and that payment satisfy all obligations under the orders of October 2000.

10. I propose to make orders in those terms.  I otherwise dismiss the application in a case filed 10 October 2012.

ORDERS DELIVERED                   

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 December 2012.

Associate: 

Date:  7 January 2013