Fuller and Fuller

[2007] FamCA 61

FAMILY COURT OF AUSTRALIA

FULLER & FULLER [2007] FamCA 61

FAMILY LAW - FINAL PROPERTY ORDERS - S.79(2) DECLARATION

Family Law Act 1975 (Cth)

APPLICANT: MRS FULLER

RESPONDENT: MR FULLER

FILE NUMBER: MLF 3239 of 2005

DATE DELIVERED: 6 FEBRUARY 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 6 FEBRUARY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR WOOD

SOLICITOR FOR THE APPLICANT: GODDARD ELLIOTT

COUNSEL FOR THE RESPONDENT: MR GLOVER

SOLICITOR FOR THE RESPONDENT: NATOLI HOWELL

Orders

1. THAT the Wife pay the Husband the sum of $115,000 ("the payment") on or before the 9th day of April 2007 ("the date").

2. THAT contemporaneously with the payment:-

   (a)the Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Wife all of his right, title and interest in the real property situate at and known as V being the whole of the land more particularly described in Certificate of Title Volume … Folio … ("the real property");

   (b)the Wife discharge the Husband against all payments and liability pursuant to the mortgage to the ANZ Bank ("the mortgage") and the Wife indemnify and keep indemnified the Husband, from all apportionable rates, taxes, and outgoings of or with respect to the real property of whatsoever nature and kind;

   (c)the Husband do all things necessary to procure a Withdrawal of Caveat in favour of N Pty Ltd and Mr G.

3. THAT in the event that the whole of the payment has not been made by the 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, so much of the payment as is then outstanding together with interest thereon at the rate prescribed by the Family Law Rules adjusted monthly from the date to the Husband; and

   (d)fourthly, the balance to the Wife.

4. THAT pending the payment of completion of the sale:-

   (a)the Wife have the sole right to occupy the real property and that during such right of occupation the Wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;

   (b)the parties hold their respective interest 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.

5. THAT the Husband be liable for and indemnify the Wife against all payments in respect of any debts, loans or other dealings involving Mr G, N Pty Ltd and U Pty Ltd or the business U.

   IT IS DECLARED

6. THAT the Court is satisfied that procedural fairness has been afforded the Trustees of the M Superannuation Fund in relation to these orders.

   IT IS FURTHER ORDERED BY CONSENT

7. THAT pursuant to s.90MT(1)(a) of the Family Law Act 1975 that, whenever a splittable payment becomes payable in respect of the interest held by the Husband in the M Superannuation Fund the Wife, or her heirs, executors or assigns, be then paid $110,000 of such splittable payment and that there be a corresponding reduction in the entitlement the Husband would have received in the M Superannuation Fund but for this order.

8. THAT these orders bind the Trustee of the M Superannuation Fund to observe their obligations as Trustee under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

9. THAT within seven (7) days the Wife serve a sealed copy of these Orders upon the Trustee of the M Superannuation Fund.

10. THAT within seven (7) days the Wife provide to the Trustee of the M Superannuation Fund full particulars as to her full name, current postal address and date of birth and such other particulars as may be required of her by that Fund.

11. THAT in respect of any superannuation interest of the Husband in the M Superannuation Fund the Trustee of that Fund:-

    (a)must not make any splittable payment without the leave of the Court; and

    (b)must notify the Wife and her solicitors on record in writing twenty-one (21) days prior to the next occasion a splittable payment becomes payable.

12. 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 superannuation and employment benefits (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) save for the items set out in Annexure A which shall be made available for collection by the Husband on or before 13 February 2007;

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

    (c)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;

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

13. THAT the amended applications of the Husband and the Wife respectively filed on the 16th day of October 2006 and on the 8th of November 2006 be otherwise dismissed.

    IT IS CERTIFIED

14. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

    IT IS NOTED

A.THAT the parties intend these orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

ANNEXURE A

Items

§MGA three seater sofa and 2 armchairs;

§S prints;

§C jumper;

§Melamine display cabinet;

§Melamine table and 6 chairs;

§W soccer ball;

§Boxing Poster;

§1995 AFL print;

§3 framed prints;

§Signed soccer ball;

§Caps and football poster;

§Football caps;

§Plus half cutlery, crockery and crystal.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3239 of 2005

MRS FULLER

Applicant

And

MR FULLER

Respondent

REASONS FOR JUDGMENT

1. In the matter of Fuller, file MLF 3239 of 2005, Mr Wood of counsel appears for the applicant wife, Mr Glover of counsel for the respondent husband.  Both counsel are instructed by solicitors and both parties are present in court.  The matter was listed in a defended list this morning but counsel sought and the court facilitated time for the parties to have discussions. The matter has resolved and I am asked to make orders by consent.

2. The trustee of the husband's superannuation fund, M Super, were advised of a potential settlement some time ago.  It is clear that these settlement negotiations between solicitors have been extant for some period of time.   I am aware of the facts and circumstances as disclosed in the affidavit material.  The matrimonial home in V has an agreed value of $375,000.  Its title is currently encumbered by a mortgage in the sum of $108,000. 

3. That property is in joint names but will be transferred to the wife, subject to her acceptance of the current mortgage debt and the payment to the husband of an additional sum of $115,000 within approximately 60 days.  The obligation of the wife is to make that payment.  I have raised those issues in court and her counsel assures me it has been a matter of discussion and she has a level of confidence that the total debt of $233,000 or thereabouts can and will be managed.

4. The husband, for his part, has provided a memorandum of withdrawal of caveat signed by or on behalf of his father and related entities, ensuring that the title is otherwise unencumbered, save for that first mortgage debt.  The orders provide for a superannuation split and there is a letter which I will have marked as exhibit 1 and will retain upon the court file by way of appropriate advice from M Super. 

5. The parties or one or both of them had a collection of sporting memorabilia.  Some items remain unaccounted for and have not been disclosed to the court and would have been the subject of cross‑examination.  In any event, there is an agreement for an exchange or return of items as identified in the court orders and which will be engrossed in annexure “A” to the orders.

6. The trustee of the superannuation fund has indicated and the court accepts that orders will be made on the engrossed and sealed orders being pronounced and forwarded by the court to the parties and then to the trustee of the fund.

7. Otherwise, I am aware of the current financial circumstances of the parties,  what would have likely been the pool of assets and liabilities and the circumstances in their separate households of the two children of the marriage, now 15 and 13 years of age respectively. 

8. On balance, and given that these are consent orders and given the significant level of legal advice and the experience of such advice, I will declare that the orders are just and equitable within the meaning of section 79(2) of the Family Law Act 1975.

9. I will provide for a transcript of these brief extempore reasons to be transcribed, placed upon the court file and made available to the parties and all subpoenaed documents will forthwith be returned on behalf of the court to the person or organisation producing same to the court.

10. I am satisfied that the parties understand that these orders are final.  There is no coming back to court, save for enforcement of the orders. 

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

………………………………………………………..
Associate: 
Date: 14 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as FULLER & FULLER