GREIG & HOLROYD

[2015] FamCA 615

FAMILY COURT OF AUSTRALIA

GREIG & HOLROYD [2015] FamCA 615

FAMILY LAW – PROPERTY SETTLEMENT – Application for consent orders made out of time – leave granted pursuant to s 44(6) of the Family Law Act 1975 (Cth) to proceed after the standard application period – whether it is just and equitable to make orders in the terms of the minute of consent orders – final orders made in terms of the consent application

Family Law Act 1975 (Cth)

APPLICANT: Mr Greig

RESPONDENT: Ms Holroyd

FILE NUMBER: MLC 2841 of 2015

DATE DELIVERED: 7 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 7 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Glezakos

SOLICITOR FOR THE APPLICANT: Le Brun Glezakos Lawyers

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Leave be granted to the Applicant husband to apply after the standard application period has expired for orders pursuant to s 90SM of the Family Law Act 1975 (Cth).

IT IS ORDERED BY CONSENT THAT

1. The Applicant pay to the Respondent the sum of $25,000.00 (which sum has already been paid to the Respondent).

2. Within 21 days of the making of Orders, the Applicant and the Respondent do all such acts and things, and sign all documents necessary:

   (a)To authorise and direct the trustee of the B Superannuation Fund (being the parties’ self managed superannuation fund) to roll-over for the benefit of the Respondent the sum of $69,000.00 to her nominated superannuation fund.

   (b)To authorise and direct the trustee of the B Superannuation Fund to record that upon the making of the rollover payment in Order 2(a) hereof, the member entitlement of the Respondent in the B Superannuation Fund is reduced to nil.

   (c)To authorise and direct the trustee of the B Superannuation Fund to record that upon the making of the rollover payment in Order 2(a) hereof, the member entitlement of the Applicant in the B Superannuation Fund is the entirety of the balance of the fund.

3. 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;

   (b)monies standing to the credit of the parties in any joint bank account are to become the property of the Applicant;

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

   (d)insurance policies remain the sole property of the beneficiary named therein;

   (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;

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

4. In the event that either party refuses or neglects to execute a deed and/or instrument in compliance with the provisions of this Order, the Registrar or Deputy Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of such party and do all acts and things to give validity and operation to the deeds and/or instruments.

IT IS FURTHER ORDERED THAT

1. All extant applications be dismissed and the matter removed from the list awaiting hearing.

AND THE COURT NOTES THAT

A.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 NOTED that publication of this judgment by this Court under the pseudonym Greig & Holroyd 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 2841 of 2015

Mr Greig

Applicant

And

Ms Holroyd

Respondent

REASONS FOR JUDGMENT

1. The applicant de facto husband in this matter filed an Application for consent orders on 2 April 2015 in the usual form, the respondent de facto wife consenting to the proposed orders for property settlement. That application was referred to the Judicial Duty List as, the relationship having broken down in May 2012, that application was out of time. Section 44(5) of the Family Law Act 1975 (Cth) (“the Act”) provides that a party to a de facto relationship may apply for an order under s 90SM 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. Section 44(6) of the Act provides that the Court may grant a 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.

2. The applicant de facto husband, through his solicitor this day, and the respondent de facto wife, by way of a letter confirming her consent to the orders being made in her absence, seek that the Court grant leave for the application to be made out of time, and that the orders be made for property settlement by consent.

3. The parties did not live together.  However, it is submitted that they both acknowledge that they were in a de facto relationship, having mingled their finances in a significant way, and they intended to cohabit, however, the relationship broke down prior to that occurring.

4. The pool of assets is essentially superannuation, which is made up of a property held by the superannuation fund, which was purchased by way of a contribution by the respondent de facto wife of $69,071 and by the applicant de facto husband of $150,793. The de facto husband is the sole director of the trustee of the superannuation fund. The non-superannuation property is valued at approximately $53,000, of which the respondent de facto wife contributed $25,000.

5. The parties commenced their relationship in 2009, and, as I said, separated in May 2012. It is a relationship of short duration.  The intent of the orders is to effectively put the respondent de facto wife in the position she was in prior to her making her contribution to the superannuation fund for the purchase of the property owned by that fund or held by that fund, and the $25,000, which she paid into an account in the applicant de facto husband’s name.

6. Both parties are in employment, the applicant earning approximately $102,000 per annum and the respondent earning approximately $48,000 per annum.  The statement of agreed facts says that neither party has any health issues or other concerns impacting on their ability to earn income in the future.

7. The parties have been represented, although only one of them has been represented at any particular point of time.  The respondent de facto wife was initially represented.  The parties negotiated and reached an agreement and the applicant de facto husband paid the wife the sum of $25,000 as part of that agreement.  The applicant de facto husband then sought legal representation.  However, it was already outside the standard application period and thereafter the respondent de facto wife was not represented, which led to further delays in the finalising of this matter.

8. Clearly, these parties wish to finalise their financial relationship.  The applicant de facto husband has already acted on the basis of the agreement reached with the respondent de facto wife, and I am satisfied that there would be hardship caused to both the applicant de facto husband and the respondent de facto wife if leave were not granted to seek orders for a property settlement and orders made finalising their financial relationship.  I am also satisfied that as the arrangements they made during that relationship are no longer appropriate and as they both seek that the Court make the orders by consent, it is just and equitable to make those orders, and that the orders proposed are within the range of likely outcomes had the matter required a hearing.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 7 July 2015.

Associate: 

Date:  29 July 2015