Godfrey and Godfrey

[2009] FamCA 506

FAMILY COURT OF AUSTRALIA

GODFREY & GODFREY [2009] FamCA 506

FAMILY LAW – CONSENT ORDERS – s 79 Property orders

Family Law Act 1975 (Cth)

APPLICANT: MR GODFREY

RESPONDENT: MS GODFREY

FILE NUMBER: MLC 1144 of 2007

DATE DELIVERED: 9 JUNE 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 9 JUNE 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR ATKINSON

SOLICITOR FOR THE APPLICANT: DAVID STAGG TONKIN & CO

COUNSEL FOR THE RESPONDENT: MR MELELLI

SOLICITOR FOR THE RESPONDENT: KENNA TEASDALE LAWYERS

Orders

IT IS ORDERED BY CONSENT:

1. THAT on or before 16^th June, 2009, the husband and the wife do all acts and things and sign all necessary authorities such that the net proceeds of the former property of the parties at F("the sale proceeds") as currently held in trust with Kenna Teasdale, the wife's solicitors, be forthwith distributed as follows:

   (a)$330,000 out of the sale proceeds be paid to David Stagg Tonkin & Company, the husband's solicitors, for and on behalf of the husband ("the payment");

   (b)the balance, inclusive of all accrued interest on the sale proceeds, be paid to the wife, she to be responsible for the disclosure as her income of the interest received and payment of the tax thereon.

2. THAT contemporaneously with the payment:

   (a)the husband provide to the wife a withdrawal of caveat number … lodged or caused to be lodged by the husband over the title of the real property at D;

   (b)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 C property being the whole of the land more particularly described in Certificate of Title Volume … Folio … ;

   (c)the wife forthwith indemnify the husband against all payments and liability pursuant to mortgage registered number … in favour of ING Bank (Australia) Ltd. ("the C property mortgage") and all apportionable rates, taxes and outgoings of or with respect to C property of whatsoever nature and kind.

3. THAT paragraph 8 of the orders of this Court dated 21^st February, 2007 be forthwith discharged.

4. THAT in the event that the wife retains C property for a period of 180 days or more, then forthwith upon the expiration of 180 days from the date of these orders, the wife refinance the C property mortgage, such that the wife is absolutely responsible for the refinanced C property mortgage.

5. THAT pending the transfer of C property:

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

   (b)the parties hold their respective interests in C property upon trust pursuant to these orders;

   (c)neither party encumber C property without the consent in writing of the other party.

6. THAT on or before 30^th June, 2009, each of the husband and the wife effect an exchange of chattels and items at C property in accordance with the lists being Schedule "A" and Schedule "B" to these orders.

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 C property and D property being deemed to be in the possession of the wife);

   (b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other and retain all benefits and entitlements respectively accruing to them;

   (c)insurance policies remain the sole property of the owner 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 and including that the wife continue to be responsible for the mortgage secured by D property;

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

8. THAT all orders for reserved costs be discharged and each party pay their own costs.

9. THAT all extant applications of the husband and the wife respectively filed in these proceedings be otherwise dismissed and removed from the docket of Young J.

10. THAT all documents received pursuant to Subpoena be forthwith returned by the Subpoenas Clerk of the Court at the Melbourne Registry to the person who produced the documents.

IT IS CERTIFIED

1. 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.

THE COURT NOTES:

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.

B.THAT the parties intend to enter into a Binding Financial Agreement to be prepared as soon as practicable by the solicitors for the wife by which each party shall abandon all (or any) claims to maintenance which they may have or have had with respect to the other.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1144 of 2007

MR GODFREY

Applicant

And

MS GODFREY

Respondent

REASONS FOR JUDGMENT

1. In this matter I am aware from a comprehensive reading of the affidavits and the file as to the net pool of assets.  The parties were relatively agreed in the balance sheet, subject to superannuation and I generally have a clear understanding both of the policies and entitlements thereunder.  The effect of these orders as prepared do not produce any split in superannuation entitlements and thus the interests of the trustee are not affected.

2. The obligation of the court is to make an order that is just and equitable within the meaning of section 79(2) of the Family Law Act 1975. In this regard, both affidavits are comprehensive and set out not only the facts of the relationship and marriage but particularly the assets and liabilities brought into and taken from the marriage and all of the work, effort and contribution made by each of them throughout the period of the marriage.

3. The settlement requires the payment to be made from joint funds to the husband of $330,000 and that sum when combined with the more modest assets to be retained by the husband is said to equate to approximately 27 per cent of the pool of assets.

4. Given the prior marriage asset circumstance and the wife's superannuation entitlements and given the circumstances that I have read, my initial assessment of this case, subject to all evidence, was approximately an award to the husband of 25‑30 per cent.  Comfortably, this figure is within that range and the obligation of the court is not to be precise to the cent but to have a settlement that is in all the circumstances just and equitable.

5. I conclude this settlement to be just and equitable and I proclaim so pursuant to section 79(2) of the Act.

6. Accordingly and at the request of the parties and by consent, I will accept minutes of orders concluding all financial and property issues.  I am satisfied by the experience of solicitors and counsel and by their explanation to the parties, affirmed in court, that both parties understand both the orders and the finality of the orders.

7. For those very brief reasons which I will have transcribed and placed upon the court file but which do not have to be released to the parties, I will make final orders.

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

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Associate: