George and Woolworth

[2017] FamCA 314

FAMILY COURT OF AUSTRALIA

GEORGE & WOOLWORTH [2017] FamCA 314

FAMILY LAW – PROPERTY SETTLEMENT – consent orders – leave granted pursuant to section 44(6) of the Family Law Act 1975 (Cth) – just and equitable division of property

Family Law Act 1975 (Cth) ss 44(5), 44(6)

APPLICANT:  Ms George

RESPONDENT:  Mr Woolworth

FILE NUMBER: MLC 1119 of 2017

DATE DELIVERED: 5 April 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 5 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Turner

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Yuliya Mik

SOLICITOR FOR THE RESPONDENT: MNG Lawyers

Orders

1. Pursuant to section 44(6), the applicant have leave to make application for final property orders outside the standard application period.

BY CONSENT IT IS ORDERED 

1. That within sixty (60) days of the date of these Orders the Respondent is to pay to the Applicant the sum of Twenty Thousand Dollars ($20,000.00) with such payment to be made to the Applicant’s solicitors.

2. That contemporaneously with the payment the Respondent shall indemnify the Applicant (and discharge her liability) against all payments and liability in respect to the mortgage secured over the real property situate at and known as B Street, Suburb C, Victoria (Certificate of Title Volume … Folio …) (“the Suburb C property”) (“the mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the Suburb C property of whatsoever nature and kind and the Applicant shall provide to the Respondent a signed Withdrawal of Caveat form pertaining to Caveat … and shall otherwise do all things and sign all documents necessary to withdraw such Caveat. 

3. That the Respondent shall otherwise retain his interest in the Suburb C property.

4. That in the event the whole of the payment has not been made by the date then the Suburb C property be sold altogether out of Court (“the sale”) and the proceeds of sale be applied as follows:

   (a)Firstly, to pay all costs, commissions and expenses of the sale;

   (b)Secondly, to discharge the mortgage or any other encumbrance affecting the real property;

   (c)Thirdly, so much of the payment as is then outstanding together with 10 per cent interest from the date to the Applicant;

   (d)Fourthly, the balance to the Respondent.

5. That pending payment or the completion of sale:

   (a)The Respondent have the sole right to occupy the Suburb C property and that during such right of occupation the Respondent pay all instalments pursuant to the Suburb C property as they fall due;

   (b)The parties hold their respective interest in the real property upon trust pursuant to the Orders;

   (c)Neither party encumbers the Suburb C property without the consent in writing of the other party.

6. That liberty be reserved to either party to apply with respect to the terms and conditions and execution of the sale.

7. 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 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 deemed to be in the possession of the Respondent;

   (b)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

   (c)Insurance policies remain the sole property of the beneficiary named therein.

THE COURT NOTES:

A.That pursuant to Section 90ST of The Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

IT IS NOTED that publication of this judgment by this Court under the pseudonym George & Woolworth 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 1119  of 2017

Ms George

Applicant

And

Mr Woolworth

Respondent

REASONS FOR JUDGMENT

1. The matter of George & Woolworth comes before me today in a Judicial Duty List upon an application for consent orders filed 8 February 2017. That application is filed outside the standard application period, and, accordingly, the parties seek leave of the Court, pursuant to s44(6) of the Family Law Act 1975 (Cth) (“the Act”), for the Court to deal with that application outside the standard application period. The background to the matter is as follows.

2. The applicant is Ms George.  She is aged 35 years.  She is engaged in full time employment. 

3. The respondent is Mr Woolworth.  He is aged 32 years.  He is employed as a tradesman. 

4. The parties commenced cohabitation in August of 2010 and separated in April of 2014.  Accordingly, the standard application period expired in April of 2016, meaning that the application is almost one year outside the standard application period. 

5. The parties have two children, D, aged six, and E, aged three. 

6. Section 44(5) of the Act provides that a party to a de facto relationship may apply for orders under the Act for the alteration of property interests only if the application is made within the period of two years after the end of the de facto relationship. That is referred to as the standard application period.

7. Section 44(6) of the Act provides that the Court may grant the party leave to apply after the end of the standard application period, if the Court is satisfied that hardship would be caused to the party or a child if leave were not granted. The Court is required to consider the reasons for any delay in making an application, the prejudice to the other party and the basis of any prima facie case.

8. The position of  these parties, it is submitted, is that there would be financial hardship, particularly to the applicant and the children of the relationship, were leave refused.  The parties have a very modest pool of assets.  They come to Court together to seek final orders that will ensure that there is a capital sum provided to the applicant which will benefit her and, of course, the children of the relationship.  Further, I am told that the delay, in part, is due to an illness within the family of the respondent which meant that matter was not able to be brought to a conclusion in a timely fashion.  I am told that the parties were engaged in negotiations for a considerable period of time. 

9. I am satisfied, having regard to those matters, that the hardship is established. Accordingly, I grant leave pursuant to s 44(6) of the Act for the application to be made outside the standard application period.

10. As to the orders sought, I am informed that the proposed settlement reflects the significant contribution made by the respondent at the commencement of the relationship.  The primary asset of the parties is a property in Suburb C.  There is modest equity in that property.  It is a property in which the respondent held an interest at the commencement of the relationship.  It is submitted on that basis the proposed orders are just and equitable.  The proposed orders provide the respondent with the opportunity of retaining his interest in that property upon a payment to the applicant. 

11. Having regard to all of those matters, I am satisfied that the proposed orders are just and equitable.  I make orders in the terms of the minute as provided.  The minute will be marked with the letter A.  It will remain on the court file, and I direct that the applicant engross the minute and file it at court within seven days. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 5 April 2017.

Associate: 

Date:  5 April 2017