Gormly and Gormly and Ors

[2007] FamCA 1720

FAMILY COURT OF AUSTRALIA

GORMLY & GORMLY AND ORS [2007] FamCA 1720

FAMILY LAW – PROPERTY – Settlement

Family Law Act 1975 (Cth)

APPLICANT: Ms Gormly

RESPONDENT: Mr Gormly  

SECOND NAMED RESPONDENTS  Mr G Gormly & Mrs M Gormly

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1359 of 2006

DATE DELIVERED: 24 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 24 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: Plaza Legal

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: Forte Family Lawyers

COUNSEL FOR THE SECOND NAMED

RESPONDENTS:

In person

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr Hale

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Hale & Wakeling

Orders

1. The third parties Mrs M Gormly and Mr G Gormly pay to the husband the sum of $62,863 and to the wife the sum of $62, 863 therefore the total amount paid will be $125, 726 (“the payment”) within ninety (90) days of the making of this order by the Court.

   a.That the current value of the property is $350,000 and the current mortgage on the property is $128,547.69 less $30,000 therefore the net current mortgage will be $98,547.69 and the remaining balance will be $251,452.31 therefore ¼ shares will be $62,863.

   b.The husband and the wife will start residing in the rental property other than …, W, Victoria and intend to buy their own property as soon as practicable.

2. Contemporaneously with the payment:

   a.The husband and the wife do all such acts and things and sign all such documents as may be required (which shall include the withdrawal of any Caveats over the property) to transfer to the third parties at the expense of the first and second parties all of their right, title and interest in the real property situated at and known as …, W in the State of Victoria (“the [W] property”).

3. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   a.The husband and wife forego any claims they may have to any superannuation benefits belonging to or earned by the other.

   b.Insurance policies remain the sole property of the owner names 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.

4. The applications of the wife filed on the 18 May 2006 and amended application in a case filed 27 July 2006 and amended application for final orders filed 25 July 2006, application in a case filed 4 September 2006 and amended application for final orders filed 24 October 2006 and the responses filed by the husband on 25 July 2006 and amended responses filed 16 November 2006 and application in a case filed 4 September 2006 and the responses of the third parties filed 20 September 2006 and amended responses filed on 17 September 2006 be otherwise dismissed.

5. The husband and the wife have reconciled.

6. In determining the net equity in the property, the parties have had regard to the sum of $30,000 redrawn on the mortgage by the husband after separation and this sum has been taken into account in determining the payment to be made to the husband and the wife by the third parties.

7. 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.

IT IS FURTHER ORDERED

1. All applications be dismissed and removed from the list of cases awaiting hearing.

2. General liberty be reserved to both parties to apply.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1359 of 2006

MS GORMLY

Applicant

And

MR GORMLY  

Respondent

REASONS FOR JUDGMENT

1. This matter is of unusual concern, having come before me in a case management capacity.  The applications had trial notices issued last year in respect of two children aged seven and three.  The parties are of Indian culture and tradition.  They were married some time ago and were separated in March of 2005.  They have reconciled apparently in the last couple of months.

2. Minutes of consent orders were presented at yesterday's case management hearing seeking that the older of the children be placed in the care and residence of the paternal grandparents, who would live with that child, as they have done for at least a couple of years, in India. 

3. Previous orders of the court have appointed an Independent Children's Lawyer for the children, who has appeared today and also appeared yesterday, and reports have been obtained from a psychologist, Ms N.  I have read those reports, dated 4 September 2006 and 20 December 2006.  They raise concerns which have caused the Independent Children's Lawyer to oppose the making of the consent orders. 

4. In particular, the consequence of the orders would separate the two siblings for at least substantial parts of the year and would place the older child in the primary care of the paternal grandparents in circumstances in which Ms N strongly recommends that both children should be together in the care of the parents.  As I have said, the parents reconciled very recently.  In addition, there are sufficient concerning elements of both reports to produce a doubt in my mind as to whether the mother's role in the apparent consent is in fact consensual, or whether she is being overborne, particularly by the paternal grandfather. 

5. The mother, the father and the paternal grandfather all appear in person today; and while the appearances are of consensus amongst them, both Ms N's reports and my observations of the parties, and particularly the mother, cause me concern as to whether that is the actual position. 

6. The proceedings came before me for case management yesterday because the parties had not complied with trial notice orders and directions.  In normal circumstances, serious consideration would need to be given to the dismissal of those applications because of non-compliance.  Because of my concerns, if the proceedings were to continue I would require the various issues to be explored at trial.  However, it is clear to me that for whatever reasons the parties do not wish to go to trial.  They have now joined in seeking that I dismiss the applications. 

7. Because of my concerns with regard to the mother, I took sworn evidence from her.  She told me on oath that she wanted the proceedings dismissed.  I am satisfied that those were her words.  I cannot be satisfied that that is her actual intention, particularly in view of what is in the two reports to which I have referred.  But on the basis that she has told me that on oath, I have decided on the balance that it is appropriate for me to take that course.

8. The parties will need to make their own arrangements with regard to these children, and in particular if they wish to remove the older child from Australia they will need to seek the discharge of orders preventing that from taking place.  There may be other watchlist orders which they will need to have discharged, but that is a matter for them.  It will need to be done by separate application, supported by a separate affidavit; and if it needs to be done urgently, application can be made to the registrar for abridgment.

9. The minutes of orders also provide for resolution of proceedings between the husband and wife for alteration of property interests pursuant to Part VIII of the Family Law Act 1975 (Cth). The minutes provide for orders whereby the interests of the husband and wife be transferred to the paternal grandparents in return for payment of moneys specified in the orders. While there may be some execution and enforcement problems with regard to those orders, I have decided on the balance that it is not appropriate for me to enter into them, although I have again expressed my concerns to the wife whilst she was on oath and she told me that she sought that the orders proceed. I will accordingly take that course.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  20 November 2008