Gerrard-Sales & Gerrard-Sales

[2009] FamCA 409

FAMILY COURT OF AUSTRALIA

GERRARD-SALES & GERRARD-SALES [2009] FamCA 409

FAMILY LAW – CONSENT ORDERS

APPLICANT: Ms Gerrard-Sales

RESPONDENT: Mr Gerrard-Sales

FILE NUMBER: MLC 4295 of 2009

DATE DELIVERED: 20 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Randles, Cooper & Co

SOLICITOR FOR THE RESPONDENT: In person

Orders By Consent

CHILDRENS ORDERS

1. That the Applicant Wife and the Respondent Husband have equal, shared parental responsibility of the child of the marriage …  born … July 2004.

2. That the Child live with the Applicant Wife.

3. That the Respondent Husband spend time with the child at times and dates agreed between the parties.

PROPERTY AND FINANCIAL ORDERS

1. That the Applicant Wife pay to the Respondent Husband the sum of NINETY THOUSAND DOLLARS  ($90,000.00) (“the payment”) as follows:

   (a)The sum of  $75,000.00 within 45 days of the date of these Orders;

   (b)The sum of $15,000.00 within 48 hours of the Husband vacating the real property at R.

2. That the Husband shall be responsible for payment of the Mortgage of the real property until the date of his vacating the real property and in the event that mortgage payments remain outstanding at the date of his vacation of the property any outstanding amount is to be deducted from moneys due to him pursuant to paragraph 4(b).

3. That contemporaneously with the payment:

   (a)The Husband do all such acts and things to transfer to the Wife at the expense of the Wife all of her interest in the real property known as R property and more particularly described in Certificate of Title Volume …  Folio ….

   (b)The Wife indemnify the Husband against any liability pursuant to the Mortgage Number … to the Westpac Banking Corporation.

4. That in the event that the whole of the payment is not made by the date then the  real property is to be sold as soon as possible out of Court (“the sale”) and the proceeds of sale applied:

   (a)Firstly to pay 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 still outstanding together with the interest rate prescribed by the Family Law Act adjusted monthly from the date to the Husband;

   (d)Fourthly the balance to the Wife.

5. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

   (a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date.  The furniture, personal possessions and like chattels in the matrimonial home are considered to be in the possession of the Wife.

   (b)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.

   (c)all insurance policies to become the sole property of the beneficiary named therein.

   (d)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;

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

6. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATION:

Pursuant to the s 81 Family Law Act 1975 the parties intend that these orders shall in far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

IT IS NOTED that publication of this judgment under the pseudonym Gerrard-Sales & Gerrard-Sales is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4295 of 2009

MS GERRARD-SALES

Applicant

And

MR GERRARD-SALES

Respondent

REASONS FOR JUDGMENT

1. This is a matter transferred to me in Chambers by a Registrar after the parties reached a compromise in respect of financial and parenting matters.

2. I have been asked to make these final orders.

3. There is agreement about the pool of assets for division. 

4. I have read the file documents made available to me and whilst each party has a different approach to the assessment of their contributions, the difference is not large.

5. The parties were married in November 1996 and separated on 15 January 2008.  There is one child of the marriage who lives with the wife.

6. The adjustment between the parties takes into account their respective contributions and the factors set out in s75(2) of the Family Law Act 1975.

7. The wife has been represented by lawyers and the husband has sworn that he has had legal advice about the facts and the law.

8. The documents have been prepared by the wife’s lawyers but have been accepted by the husband.

9. In all of the circumstances, I am satisfied that these orders are just and equitable.

10. I am also satisfied that the orders are in the best interested of the child.

I certify that the preceding ten paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:     

Date:   20 May 2009