Grendl and Abbott

[2017] FamCA 738

FAMILY COURT OF AUSTRALIA

GRENDL & ABBOTT [2017] FamCA 738

FAMILY LAW – PROPERTY – De facto relationship – application for property orders filed outside the standard application period – leave granted pursuant to s 44(6) of the Family Law Act 1975 (Cth) – final property orders.

Family Law Act 1975 (Cth) 1975 ss 44(5), 44(6), 90SM
APPLICANT:	Ms Grendl

RESPONDENT: Mr Abbott

FILE NUMBER: MLC 5454 of 2017

DATE DELIVERED: 6 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 6 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Crocker

SOLICITOR FOR THE APPLICANT: Wards Barristers & Solicitors

COUNSEL FOR THE RESPONDENT: Ms Kelly

SOLICITOR FOR THE RESPONDENT: Kelly & Associates Family Lawyers

Orders

IT IS ORDERED THAT

1. Leave be granted for the Applicant to apply after the standard application period has expired for orders pursuant to S90SM of the Family Law Act 1975 (Cth).

BY CONSENT IT IS ORDERED

1. The Respondent retain all his right title and interest in the following property:-

   (a)The farming land at B Street, C Town (“the farm property”) more particularly described in Certificate of Titles Volume … Folio …, Volume… Folio … and Volume … Folio …;

   (b)Utility currently registered in the Applicant’s name;

   (c)4WD …;

   (d)Truck & dog …;

   (e)Business Partnership;

   (f)Ag Bike;

   (g)Road Bike …;

   (h)Sports Road bike …;

   (i)Tandem Trailer;

   (j)Boat & Trailer;

   (k)Firearms;

   (l)Farm tools and machinery;

   (m)Shares Company G & AMP

   (n)ANZ online account in joint names;

   (o)ANZ Access account in joint names;

   (p)Bendigo Business account in joint names;

   (q)Stock;

   (r)Any proceeds of the farm produce past present and future;

   (s)Any superannuation interest in his name.

2. The Applicant retain all her right title and interest in the following property:-

   (a)The residential property at D Street, C Town (“the D Street property”) more particularly described in Certificate of Title Volume … Folio … subject to the existing National Australia Bank (“NAB”) mortgage number …6D;

   (b)Hatchback;

   (c)Horse float;

   (d)NAB account in her name;

   (e)Horses in her possession;

   (f)Any superannuation interest in her name.

3. The Respondent, on or before 60 days from the date of these Orders (“the date”):-       

   (a)pay to the Applicant the sum of $340,000 (“the payment”)

   (b)do all acts and things and sign all documents as may be required to transfer to the Applicant all of his right title and interest in the real property known as and situate at E Street, F Town (“the F Town property”) more particularly described in Certificate of Title Volume… Folio … subject to the Applicant providing to the Respondent on or before the date a full release from the Bendigo Bank for the Respondent’s liability pursuant to the mortgage … secured over the F Town property and/or the Applicant providing a refinance of the said mortgage into her sole name and a discharge of the said mortgage to the Respondent;

   (c)re-finance the Commonwealth Bank of Australia (“CBA”) truck loan into his sole name or obtain a release of the Applicant’s liability for same from the CBA;

4. That should the Respondent fail to make the payment by the date then the farm property be sold and the net proceeds of sale, after payment of all expenses associated with the sale, be disbursed as follows:-

   (a)To make the payment, or so much as is outstanding with penalty interest as set out under the Family Law Act to the Applicant;

   (b)To pay the balance to the Respondent.

5. That simultaneously with the payment to the Applicant in paragraph 4(a):-

   (a)The Applicant provides to the Respondent Withdrawal of Caveats numbers … and … over the farm property in registrable form together with the lodging fee for same.

   (b)The Applicant do all acts and things and sign all documents as may be required by the Respondent to dissolve, if not already dissolved, the partnership known as Abbott & Grendl (“the partnership”) and the Respondent indemnify the Applicant for any liability of same noting that any income tax payable by the Applicant relating to any income received by her from the partnership shall be met by the Respondent.

   (c)The Applicant shall do all such acts and sign all documents to transfer the Utility motor vehicle Victorian registration number … registered in the Applicants name to the Respondent at the Respondents expense.

   (d)Any joint accounts of the parties in any financial institution are to become the property of the Respondent and the Applicant do all acts and things and sign all documents required by the Respondent to give effect to this Order.

   (e)That pending the transfer of the F Town property:-

   (i)     the parties hold their respective interests in the F Town property upon trust pursuant to these orders;

   (ii)    neither party encumber the real property without the consent in writing of the other party.

6. That, other than for the purpose of enforcing 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.

   (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 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;

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

IT IS FURTHER ORDERED

1. That all extant applications, including the Applicant’s application for spousal maintenance, be dismissed and the proceedings be removed from the list of cases awaiting hearing.

THE COURT NOTES

A.That pursuant to s.90ST of the Family Law Act 1975 (Cth) the parties intend that these orders shall, as far as practicable, finally determine the financial (and other) relationships between them, including as to all matters of property distribution and lump sum or periodic spousal maintenance, and to avoid further proceedings between them.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grendl & Abbott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5454 of 2017

Ms Grendl

Applicant

And

Mr Abbott

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of Grendl & Abbott comes before me today in a Judicial Duty List, upon an application for final orders in relation to property. The parties are in agreement that those orders should be made. The position is that they are out of time in the filing of their initiating application, and, accordingly, the parties seek leave, pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”), for the matter to be dealt with and the application to proceed outside the standard application period.

2. The background to the matter is as follows.  The applicant is Ms Grendl.  She was born in 1954 and is aged 63 years.  I am told that she is engaged in part-time employment. 

3. The respondent is Mr Abbott.  He is aged 64 years, and is a farmer. 

4. The parties commenced their relationship in either 1995 or 1996.  They had a period of separation between 2000 and 2002.  Their final separation occurred in about May 2015.  Hence, they are approximately three months outside the standard application period.

5. The application for leave is one made under s 44(5) of the Act. That section provides that a party to a de facto relationship may apply for orders under the Act for the alteration of property interests 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 the party leave to apply after the end of that period if the Court is satisfied that hardship would be caused to the party or a child if leave were not granted.

6. The Court is required to consider the reasons for any delay in making an application, the prejudice to the other party and the basis of any prima facie case.  None of those matters are particularly relevant today, given that the parties seek orders by consent and seek leave of the Court to have those orders made.  Hardship is not simply a matter of financial hardship.  Hardship can also be the fact that parties own properties together.  That is the circumstance that presents itself in this matter.

7. Hardship can also simply be a matter that the parties want to bring an end to their financial relationship and, absent the grant of leave by the Court are not able to do so.  Again, that is a factor in this matter. 

8. The parties together seek the opportunity to end their financial relationship.  I have been assisted by the provision of an affidavit from the respondent, which was sworn on 5 September 2017 and filed this day.  That sets out the background to the proceedings.

9. It is clear from that affidavit that the parties have worked towards a resolution. It has been an extensive negotiation, culminating in a mediation, which occurred with Mr Wood in May 2017. There has been the necessity to obtain valuations and the like. It is clear from the material filed that there would be hardship visited upon both parties were leave not granted, particularly in circumstances where there is a jointly owned property, the intention of the parties being that that property be transferred to the applicant. In those circumstances, I am satisfied that it is appropriate that leave be granted to the parties, pursuant to s 44(6) of the Act.

10. Turning then to the proposed settlement, again, the affidavit filed by the respondent helpfully sets out the background, together with a chronology of the important events in the parties’ relationship.  There is a significant contribution made on behalf of the respondent fairly late in the relationship, that being the transfer of farming land from his mother to him in about 2012.  It is clear from the chronology and information provided in the Court documents that that has been a significant contribution relatively late in the parties’ relationship.

11. The pool of assets that is available to these parties is in the order of $1.45 million.  The proposed adjustment reflects a transfer of assets and cash to the applicant in the order of approximately 30 per cent of the parties’ interests.  Having regard to the background to the matter, I am satisfied that that is an appropriate adjustment in light of the respondent’s contributions.  I am satisfied that the proposed orders are just and equitable.

ORDERS DELIVERED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 6 September 2017.

Associate: 

Date:  6 September 2017