HALPIN & HALPIN

[2010] FamCA 181

FAMILY COURT OF AUSTRALIA

HALPIN & HALPIN [2010] FamCA 181

FAMILY LAW – PROPERTY SETTLEMENT – s 79 final property and financial proceedings – Consent order – Orders are just and equitable

APPLICANT: MS HALPIN

RESPONDENT: MR HALPIN

FILE NUMBER: MLF 762 of 2006

DATE DELIVERED: 1 MARCH 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 1 MARCH 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR MELILLI

SOLICITOR FOR THE APPLICANT: KENNA TEASDALE

COUNSEL FOR THE RESPONDENT: MR SPICER

SOLICITOR FOR THE RESPONDENT: MADISON LAWYERS

Orders

IT IS ORDERED BY CONSENT:

1. THAT the husband forthwith do all things and sign all documents as may be required to transfer to the wife at her expense and free of encumbrance all his right title and interest in the real property situate at and known as B property being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the B property”).

2. THAT the husband and the wife forthwith do all things and sign all documents necessary to obtain a discharge of the mortgage No.: K… to the Commonwealth Bank presently encumbering the B property.

3. THAT on or before 15 March 2010 the husband pay to the wife the sum of $350,000 (“the first payment”) as follows:

   a)by doing all things necessary and signing all documents that may be required in order to facilitate and enable the wife to roll out her member entitlement in the Halpin Superannuation Fund (asserted by the husband to be presently $168,000) into a superannuation fund nominated by the wife.

   b)by paying the balance of approximately $182,000 (or whatever sum is required to satisfy the first payment after taking into account the wife’s superannuation roll out) such sum to be paid to the wife’s solicitors.

4. THAT on or before 1 June 2010 the husband pay to the wife the sum of $334,000 (“the second payment”) such sum to be paid to the wife’s solicitors.

5. THAT contemporaneously with:

   a)the second payment; and

   b)the husband refinancing the mortgage No. X… to the Commonwealth Bank so as to remove the wife as a mortgagor and providing to the wife a discharge of the said mortgage;

   the wife do all things and sign all documents as may be required in order to transfer to the husband (at the expense of the husband) all of her right, title and interest in the real property situate at and known as S property being the whole of the land more particularly described in Certificate of Title Volume … Folio … (the S property) and thereafter, the husband pay and indemnify the wife against all payments and liability pursuant to any mortgage encumbering the said property and all apportionable rates, taxes and outgoings of or with respect to the S property of whatsoever nature and kind.

6. THAT in the event that the whole of the first and the second payments have not been made by the 1^st day of June 2010 then the S property be forthwith sold altogether out of Court (the sale) and upon completion of the sale the proceeds of the sale be applied:

   a)first to pay all costs, commissions and expenses of the sale;

   b)secondly to discharge the mortgage and any other encumbrance effecting the S property;

   c)thirdly so much of the first and second payment as is then outstanding together with interest thereon at the rate of 11% per annum adjusted monthly from the 1^st day of June 2010 to the wife;

   d)fourthly, the balance to the husband.

7. THAT pending the payments to the wife or completion of the sale:

   a)the husband have the sole right to occupy the S property and during such right of occupation he pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the S property as they fall due.

   b)the parties hold their respective interests in the S property upon trust pursuant to these Orders

   c)neither party encumber the S property without the consent in writing of the other party.

8. THAT the husband retain for his sole use and benefit all his right, title and interest and shareholding in:

   a)D Pty Ltd as Trustee for the Halpin Property Trust;

   b)U Pty Ltd;

   c)W Pty Ltd;

   d)S Pty Ltd as Trustee for the Halpin Family Trust;

   e)P Pty Ltd;

   f)E Pty Ltd; and

   g)R Pty Ltd;

   collectively referred to as the Halpin Group

   and he be solely liable for and indemnify the wife against any and all personal and other liability of the husband and the Halpin Group including but not limited to personal and other taxation liability past present and future of the parties for capital gains tax, goods and services tax or penalty tax and further that he pay and indemnify the wife with respect to all liability to X Finance Pty Ltd and/or its successors in title.

9. a)      THAT the wife be solely entitled to the furniture, personal possessions and like chattels in the B property save for those items listed in Annexure A hereto as agreed between the parties which shall be made available to the husband for collection by him at his expense.

   b)that the husband be solely entitled to the furniture, personal possessions and like chattels in the S property.

10. THAT 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)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

    c)insurance policies remain the sole property of the owner named thereon;

    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.

11. THAT all extant applications for final Orders be otherwise dismissed.

12. THAT the proceedings be removed from the list of cases awaiting hearing and further be removed from the docket of Young J.

13. THAT upon discharge of the husband’s obligations pursuant to Orders 1, 2, 3 and 4 hereof, all previous procedural and other Orders be and are hereby discharged.

14. THAT there be no Order as to costs.

15. THAT all documents and records subpoenaed to this Court be forthwith returned by the Subpoena’s Clerk of the Family Court of Australia to the person or organisation who produced same to the Court.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

IT IS NOTED:

A. THAT the parties intend these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

B.THAT the ex tempore Reasons for Judgment be transcribed and placed upon the Court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER  MLF 762 of 2006

MS HALPIN

Applicant

And

MR HALPIN

Respondent

REASONS FOR JUDGMENT

1. The matter of Halpin is before me for final consent orders to be made pursuant to section 79 of the Family Law Act.  This matter does have a long history of proceedings before the court.  It has been in my docket for a considerable time and, prior to that, was a live property and financial issue before the court.  The parties have engaged experienced solicitors and counsel and, at a time when the matter was to commence a five day defended hearing have now resolved all aspects of their dispute. 

2. I have been significantly involved in this matter over prior case management and other hearings, and I am aware of all of the financial issues that were in dispute and, in particular, as to contribution, the section 79(4) matters and the other factors under section 75(2) of the Act.

3. At the age of life of these parties, settling their dispute and being out of court and having a home and sufficient funds for each of their lifestyle is important, and whilst it has been a long time coming, common sense has applied.  I do not say that being critical of either of them, because the discovery and disclosure process and a proper understanding of the assets has taken effort and has cost a considerable sum of money.  All matters balanced, however, I have a very clear understanding of the basis of the current settlement. 

4. I say no more save that pursuant to section 79(2) of the Act I am wholly satisfied that this outcome is, in all of the circumstances of this case, a just and equitable result. I have a clear understanding that both husband and wife were involved in the settlement, have had full information from legal practitioners, and they both understand and accept the settlement. On that basis, it is final, and I have emphasised that finality to the parties.

5. Once the court makes these orders, and makes a very clear declaration that the orders are just and equitable, this matter does have the seal of finality, and I say that in the presence of both parties and their practitioners.  Accordingly, I will pronounce these orders and will finally resolve all aspects of the matter of Halpin, and on the basis that all previous orders are discharged and these orders are to be effective from my execution of an updated copy of the orders which will arrive by email transmission with my associate this day. 

6. I formally congratulate both solicitors and each of their counsel in resolving this matter but, more particularly, the parties.  However long the road was within the court process, it is now resolved and it did avoid both a five day trial and the risk of what I might have ordered, and the additional cost thereto. 

7. I will have those remarks transcribed and placed upon the court file.  I do not expect they will ever need to be accessed.  I see no need to formally distribute them to the parties, but they will be on the file if ever a requirement is for them to be read. 

8. I will have all subpoenaed documents forthwith returned to the person or organisation who produced same to the court.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: