Hale and Harrison

[2014] FamCA 165

FAMILY COURT OF AUSTRALIA

HALE & HARRISON [2014] FamCA 165

FAMILY LAW – PRACTICE AND PROCEDURE – Consent orders refused on the basis they were not just and equitable.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hale

RESPONDENT: Mr Harrison

FILE NUMBER: MLC 8677 of 2013

DATE DELIVERED: 4 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 March 2014

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Knight

SOLICITOR FOR THE RESPONDENT: PCL Lawyers

Orders

1. That the application for the making of consent orders is refused.

2. That the application is dismissed.

3. That the reasons this day be transcribed and be placed on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hale & Harrison 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 8677 of 2013

Ms Hale

Applicant

And

Mr Harrison

Respondent

REASONS FOR JUDGMENT

1. On 8 October 2013, Ms Hale, who nominated herself as the applicant, and Mr Harrison, who nominated himself as the respondent, filed an application under rule 10 of the Family Law Rules requiring that the Court consider making orders relating to the conclusion of the matters arising out of their de facto relationship.  What appeared to be common ground initially is now not necessarily so.  It seems that the parties lived together from about 1998 until they separated in April 2009, and from their union four children were born.  The two youngest are twins aged 10, and there are two other children aged 13 and 15. 

2. There seems to be some common ground that the parties have entered into a parenting plan, as it is called, which is to regulate the respective times and obligations of the parents and the children.  For reasons that do not all appear clear, that document is not on the court file, and for that reason I do not know why it is that I am being asked to make, what is a parenting plan into an order.  I am not at all sure what that is about.  On the basis that the document is not here, I propose to leave it for the parties to sort that out amongst themselves. 

3. The more difficult question relates to the property issue.  At first blush, it looks remarkably like there is very little, if any, property here to divide.  The main property seems to be a property in New South Wales which is described as “[Property A]” at Town B.  The common ground between the parties is that if it was put on the market as it currently is, it would hopefully sell for $85,000, but then again, its municipal value is probably around $60,000.  There is a current mortgage of $17,000, so the equity of the parties is very, very modest indeed. 

4. The more interesting question is how the parties acquired that property.  It seems that it was acquired during the relationship.  Ms Hale’s mother provided the parties $10,000 by way of a loan for the deposit.  That loan has never been repaid.  In discussions it seems that Ms Hale was going to pay what is now outstanding in the sum of $17,000 out of whatever entitlement she received. 

5. The parties attended today with a set of proposed consent orders under which that property would be sold, and after payment out of the mortgage, the proceeds would be divided equally.  That would mean effectively that Ms Hale would walk away, on the basis that it probably sells to somewhere in the $60,000 to $70,000 bracket, with something in the vicinity of about $20,000 after sale costs with the mortgage paid out.  But, out of that sum she then has to pay back her mother the sum of $7000. 

6. Whilst even that might be within the range of possible outcomes in a case like this if it was indeed litigated, the dilemma is that Ms Hale tells me, and it is not denied by counsel for Mr Harrison, at some stage after 2009, Mr Harrison received an inheritance.  That inheritance, according to Ms Hale, was in the vicinity of $150,000, although she has never seen any documents other than what she was told by Mr Harrison’s sister.  In the document filed with the Court, Mr Harrison said that he has about $12,000 left.  Whilst that sum of money came in after the death of his mother and after the separation of the parties, it clearly is an indication that his financial position is slightly better than Ms Hale. 

7. Thus one can look at the future of each of these parties.  Both of them are currently dependent on Centrelink benefits.  Mr Harrison is in his fifties and a disability pensioner and is unlikely to work again.  Ms Hale is 36 years of age, and currently has the care of four children whom I have already mentioned.  She too is in receipt of Centrelink benefits, and receives a very small sum of money each month by way of child support.  One might therefore conclude that it is the taxpayers of Australia who are supporting these four children.  

8. The purpose of today’s hearing was twofold.  One was to enable the Court to decide whether it had jurisdiction to make the orders in the first place on the basis that when the application was filed, the parties indicated that they were in a de facto relationship and they separated in 2009;  that statement alone would not give rise to jurisdiction in this Court, because the legislation came into operation on 1 March 2009.  It seems from discussion between the parties that it is now common ground that they separated in April 2009, and that provides the jurisdiction.  However, they have to bring their application to the Court for orders within two years of the separation, which obviously meant that their time expired in April 2011. 

9. There were lots of explanations as to why they did not bring their application in time.  I accept that that is not a disputed issue.  That then leaves the question of whether or not the Court should exercise its power to give them leave to proceed to seek orders on the basis of the hardship provision.  I have been unable to ascertain any basis upon which I could find that there is hardship here.  The facts are just vague. 

10. Even if I could be satisfied that there was a hardship provision, I would then have to be satisfied under s 90SM of the legislation that the orders are just and equitable.  I find that the loan which is repayable by Ms Hale in circumstances where Mr Harrison seems to have more funds and more property is not just and equitable.  Mr Knight on behalf of Mr Harrison made a valiant attempt to say that it was just and equitable because the parties had reached agreement, had signed off on it, and indeed, it would be a very costly exercise for them to take the steps to do anything more.  That in my view is not a basis upon which this Court should simply waive away what is in reality its subjective judgment about what is fair. 

11. When I walked through all of those issues with Ms Hale and asked her whether she thought it was fair, she said it was not.  On that basis, it would be entirely inappropriate for the Court to make the orders, and under those circumstances the application for consent orders is refused. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 March 2014.

Associate: 

Date:  24 March 2014