Green and Green

[2009] FamCA 418

FAMILY COURT OF AUSTRALIA

GREEN & GREEN [2009] FamCA 418

FAMILY LAW – CONSENT ORDERS

APPLICANT: Mr Green

RESPONDENT: Ms Green

FILE NUMBER: MLC 378 of 2009

DATE DELIVERED: 14 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS TULLOCH

SOLICITOR FOR THE APPLICANT: JAFER

COUNSEL FOR THE RESPONDENT: MR TAUSSIG

SOLICITOR FOR THE RESPONDENT: TAUSSIG CHERRIE & ASSOCIATES

Orders

IT IS ORDERED BY CONSENT:

1.That on or before 4pm on 13 July 2009 (“the date”) the wife to:

a.Pay to the husband’s solicitors for the benefit of the husband the sum of $25,000 (“the payment”);

b.Do all such acts and things as may be required to refinance into her sole name the mortgage (“the mortgage”) secured against the real property situate at and known as T in the State of Victoria (“the real property”); and

c.Indemnify the husband against all liability for all rates, taxes and outgoings of the real property of whatsoever nature and kind.

2.That upon the wife complying with paragraph 1 of these orders or earlier if required by the wife’s re-financier the husband to remove at his expense the caveat lodged by him on the real property.

3.That in default of the wife complying with paragraph 1 of these orders on or before the date the real property be forthwith sold out of court (“the sale”) and the parties each do all acts and things and sign all necessary documents to effect a sale by way of a public auction and by way of consequential arrangements that shall be made for the purposes of the said public auction:

a.The said public auction shall take place on or before 1 September 2009 (“the first auction”);

b.The real property shall be listed for sale with an estate agent to be agreed between the parties and failing agreement to be nominated by the President of the Real Estate Institute of Victoria (“the estate agent”);

c.The reserve price shall be as agreed between the parties upon consultation with the estate agent and failing agreement shall be as advised by a valuer to be nominated by the President of the Real Estate Institute of  Victoria;

d.In the event that the real property is not sold within 21 days of the first auction a further auction shall be conducted on or before 1 November 2009 (“the second auction”); and

e.There shall be no reserve price for the second auction.

4.Upon completion of the sale the proceeds of the sale be applied as follows:

a.Firstly, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the real property;

b.Secondly, to discharge the mortgage and any other encumbrances affecting the real property;

c.Thirdly, the sum of $25,0000 to the husband together with compound penalty interest thereon at the rate of 10.0% per annum adjusted monthly from the date to the date of payment; and

d.Fourthly, the balance then remaining to the wife.

5.That pending the payment or the husband receiving the whole of his entitlements pursuant to subparagraph 4(c) of these orders:

a.The wife have the sole right to occupy the real property.  During such right of occupation the wife to pay all instalments pursuant to the mortgage and rates, taxes and like apportionable outgoings of the real property as they fall due.

b.The parties hold their respective interests in the real property upon trust pursuant to these orders.

c.Neither party encumber the real property without the consent of the other party.

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

7.That in the event that the wife refuses or neglects within 14 days of the date to comply with the provisions of paragraph 3 of these orders:

a.The Registrar of the Family Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the husband and do all acts and things necessary to give validity and operation to the said order; and

b.The wife is ordered to pay all reasonable solicitor/client costs incurred by the wife for the purpose of enforcing this order, to be taxed if not agreed. 

8.That on or before 4pm on 4 June 2009 the parties to each do all such acts and things and sign all such documents as may be required to:

a.Cause the wife to resign as a director of G Pty Ltd (“the company”);

b.Transfer to the husband all of the wife’s shares and entitlements in the company; and

c.Deliver to the husband from the parties’ safe deposit box the following items (which he shall thereafter retain for his sole use and enjoyment):

i.Gold man’s bracelet;

ii.Gold man’s necklace;

iii.Gold and diamond man’s ring;

iv.Gold and diamond belt buckle; and

v.Gold ingot.

8A.The husband will cause the documents referred to in sub-paragraphs 8(a) and (b) of the orders to be lodged with ASIC at his expense.

9.That unless other 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.  All chattels in the real property are considered to be in the possession of the wife.

b.Money standing to the credit of the parties in any joint bank account is to be retained by the wife;

c.Each party forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;

d.All insurance policies to become the sole property of the beneficiary named hereunder;

e.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.

10.That all extant applications be otherwise dismissed.

IT IS DIRECTED

11.That the minutes of consent orders remain on the court file.

IT IS CERTIFIED

12.Certify for counsel and solicitor acting as counsel.

IT IS NOTED:

A.The parties intend that these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 378 OF 2009

MR GREEN

Applicant

And

MS GREEN

Respondent

REASONS FOR JUDGMENT

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

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

3.There is some disagreement about the pool of assets for division but that is modest.  On the material, the parties have few assets.

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 2003, separated in 2008 and were divorced on 21 April 2009 by an order of the Federal Magistrates Court.  There are 2 children of the marriage who live 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.Both parties have been represented by lawyers who have prepared the documents before me.

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

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:   21 May 2009