Gavin and Garden (No. 2)

[2007] FamCA 1271

FAMILY COURT OF AUSTRALIA

GAVIN & GARDEN (NO. 2) [2007] FamCA 1271

FAMILY LAW - PROPERTY – Application to set aside orders

APPLICANT: mr gavin

RESPONDENT: ms garden

FILE NUMBER: BRF 3025 of 2003

DATE DELIVERED: 18 October 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 17 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Applicant appears on his own behalf

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Respondent appears on her own behalf

SOLICITOR FOR THE RESPONDENT:

Orders

1. The Order for property settlement of  5 May 2004 be set aside.

2. The matter be listed in the Registrar’s Directions Hearing list at 9.00am on 13 December 2007.

3. Until further order the Applicant and the Respondent must not without leave of a court having jurisdiction under the Family Law Act institute proceedings under the Act for property settlement.

4. Any application for leave in this Court is in the first instance to be listed before a Judge in chambers without appearances and unless otherwise ordered is not to be served upon any other party.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice BELL delivered this day will for all publication and reporting purposes be referred to as Gavin & Garden

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3025 of 2003

MR GAVIN

Applicant

And

MS GARDEN

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Mr Gavin for certain orders as set out in his originating application.  The respondent is Ms Garden.

2. This application was shortened, if I may put it that way, by the orders of Carmody J wherein on 17 September 2007 he made orders, certain notations and there was a list of agreed facts prepared.  From those lists of agreed facts the following is not in dispute:  That the parties were married for 11 years or thereabouts from December 1992 to August 2003; two children, being V born in November 1993, and J born in June 1996.  That on 5 May 2004 a consent order was made before O'Reilly J in which the property, totalling $313,579, was divided between the parties, 66.7 per cent, or $209,305 to the wife with the balance of $104,274 or 33 per cent to the husband by consent order.

3. O'Reilly J made certain statements during the trial indicating her view that 70 per cent of the net property value should go to the resident parent.  The wife received an amount of $214,766 being the market value of the A property of $405,000 less 190,000 mortgage in exchange for a cash payment of $15,000 to the husband.

4. The husband retained assets in his ownership or possession as follows; a motor vehicle value of $4000; three superannuation policies $53,000; cash of bank of more than $13,500.  The property orders were fully effected in 2004.

5. Parenting orders were made on 5 May 2004 providing for the children to reside with the mother, have contact with the father Thursday…