Fortnum & Tamplin (No 3)
[2022] FedCFamC1F 1073
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fortnum & Tamplin (No 3) [2022] FedCFamC1F 1073
File number(s): ADC 2365 of 2017 Judgment of: KARI J Date of judgment: 13 December 2022 Catchwords: FAMILY LAW - PROPERTY SETTLEMENT- Ex Tempore Reasons - Final orders – Orders made by consent– Just and equitable - Where the Court considers that the parties have reached a commercial resolution – Where the matter has had a long trajectory, with the parties incurring significant legal fees – Where the orders see the approximate equal division of the parties’ net assets Legislation: Family Law Act 1975 (Cth), ss 79, 79A Cases cited: Fortnum & Tamplin (No 2) [2022] FedcFamC1F 209 Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 13 December 2022 Place: Adelaide Counsel for the Applicant: Mr Tredrea Solicitor for the Applicant: Carmen Wood & Associates Counsel for the Respondent: Mr Culshaw Solicitor for the Respondent: Culshaw Miller Lawyers ORDERS
ADC 2365 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FORTNUM
Applicant
AND: MR TAMPLIN
Respondent
order made by:
KARI J
DATE OF ORDER:
13 DECEMBER 2022
THE COURT ORDERS THAT:
1.That there be orders in terms of paragraphs 1 to 18 of the amended Draft Minute of Order this day signed by me.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Fortnum & Tamplin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J
This matter comes before me today in relation to financial issues arising from the parties’ relationship. I do not propose to recite any detailed history of the matter because I have delivered a very long interlocutory judgment earlier this year (Fortnum & Tamplin (No 2) [2022] FedCFamC1F 209), where I set out the very lengthy trajectory of the matter. I am cognisant of all of the matters set out in those reasons in giving these reasons and ultimately making the orders that I am invited to make today.
The parties, as I understand it, have been engaged with the assistance of their legal representatives in negotiations to resolve their competing claims before the court.
I understand that the applicant has an application before the Court pursuant to s 79A of the Family Law Act 1975 (Cth) to set aside final orders for property settlement made on 11 July 2017. If successful in that application, the applicant has a consequential application for property settlement pursuant to s 79 of the Act.
The parties, to their credit, have been able to put aside the very significant difficulties they have faced throughout the course of these current proceedings. Financial issues first returned before the Court after the making of the final orders some significant time ago on 5 September 2017.
I have now been invited to make orders both pursuant to s 79A, setting aside certain aspects of the final orders for property settlement made on 11 July 2017, and in substitution thereof, to make orders pursuant to s 79 as and by way of property settlement.
I understand from the submissions that have been made on behalf of each of the parties that they have reached – my words, not theirs – a commercial resolution of the matter. It is not lost on me, that the matter has had a long trajectory, but involved in that trajectory has been that each of the parties have incurred significant legal fees.
I am certain that in coming to a resolution, the parties have had regard to the legal fees that they have incurred. In addition, a resolution of the proceedings now and the legal fees that are to be saved by avoiding a further trial hearing in the matter, given that the parties endured a very long and broken up trial hearing in relation to parenting matters, I am sure, has factored into their reasoning and the resolution of the matter.
I am told by counsel for the applicant that an early resolution of the matter has been a focus for his client. I am equally told that on the applicant’s estimations, the division that the Court is now being invited to implement is one that would see an approximate equal division of the parties’ net assets.
I understand that there is a property at Suburb B which has been the subject of significant contention between the parties. These Orders, in essence, implement that which the parties originally had intended when the orders were made in July 2017, that is, that the respondent would retain the property. However, there is a significant difference between the clarity of the orders the Court is now being invited to make, and what can only be described, perhaps in more precise words than I used in my earlier decision, as the lack of clarity in the way the earlier orders were drafted.
I have no difficulty in making the orders that I have been invited to make today. Indeed, when I delivered my earlier decision in the matter, I foreshadowed that I considered the orders to be difficult to comprehend and likely unenforceable.
In those circumstances, accordingly, I consider it appropriate to make the orders that I have been invited to make pursuant to s 79A of the Act.
In addition, in light of the submissions that counsel have made for each of the parties, and understanding that the parties have sought to implement an approximate equal division between them, it is my view that, taking into account all of the relevant factors, the division that the parties are inviting the Court to make today is one that is just and equitable.
I accordingly intend to make orders in terms of the Minute of Order as amended and signed by me today.
NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 19 January 2023
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