Harradine and Michaels

[2019] FamCA 131

FAMILY COURT OF AUSTRALIA

HARRADINE & MICHAELS [2019] FamCA 131

PROPERTY

APPLICANT: Ms Harradine

RESPONDENT: Mr Michaels

FILE NUMBER: CAC 438 of 2018

DATE DELIVERED: 5 March 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 5 March 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Rama Myers Family Lawyers

COUNSEL FOR THE RESPONDENT: Dr Behrens

SOLICITOR FOR THE RESPONDENT: Belbridge Hague

Orders

BY CONSENT IT IS ORDERED:

1. That all previous Orders in relation to property and/or spousal maintenance be discharged and all extant applications in relation to property and/or spousal maintenance be dismissed.

2. That the Husband pay to the Wife:

   (a)the amount of $10,000 (“the first payment”) within 5 days of the date of these Orders (“the first payment date”);

   (b)the further sum of $65,000 (“the second payment”) within 60 days of the date of these Orders (“the second payment date”).

3. That in the event the whole of the first payment has not been made by the first payment date and/or the second payment has not been made by the second payment date, then the Husband shall sign all documents and do all things necessary to transfer the Wife the real property known as “Property B”, G Road, Town P being the whole of the land more particularly described in Certificate of Title Folio Identifier … to be held on trust for sale and the real property be sold as soon as practicable out of Court (“the sale”) and the proceeds of sale be applied:

   (a)firstly to pay all costs commissions and expenses of the said trust transfer and the sale;

   (b)secondly to discharge the mortgage and any other encumbrance affecting the real property;

   (c)thirdly so much of the first and/or second payment as is then outstanding together with interest thereon at the rate prescribed by the Family Law Rules adjusted monthly from the first and/or second payment date to the Wife;

   (d)fourthly the balance to the Husband.

4. That pending the second payment or completion of the sale:

   (a)the Husband have the sole right to occupy the real property and that during such right of occupation the Husband pay all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of the real property as they fall due;

   (b)the parties hold their respective interest in the real property upon trust pursuant to these Orders;

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

5. That within 10 days of receipt of the payment referred to in paragraph 2(a) herein, the Applicant Mother shall return to the Respondent Father Motor vehicle 1 (registration number …) via the Father’s sister, Ms S together with all keys and any documentation for Motor vehicle 1.

6. That pending the return of Motor vehicle 1 referred to in paragraph 5 herein, the Respondent Father will continue to make all repayments on the loan in respect of the said vehicle.

7. The Respondent is solely entitled to the exclusion of the Applicant including but not limited to his interests in C Pty Ltd, F Pty Ltd, T Pty Ltd, E Ltd, Mr Michaels Consolidated Trust or W Pty Ltd.

8. If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so then the Registrar of the Melbourne Registry of the Family Court is hereby appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

9. A defaulting party shall pay the other party's taxed costs of and incidental to such request and production of documents to the Registrar.

10. That unless otherwise 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;

    (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.

NOTATIONS

A.That the Applicant Mother has received an interim property payment of $27,000 pursuant to Orders made on the 19 March 2018.

B.The Applicant Mother has agreed to make enquiries about the purchase of a property in the E Region as a home for herself and X using the funds she receives pursuant to these Orders and the Respondent Father has agreed to make a payment in excess of what he otherwise would have in the hope that she will be able to do so.

C.That pursuant to Section 90ST of the Family Law Act 1975 the parties intend these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

D.The only outstanding matters before the Court are parenting matters which are listed on 4 June 2019.

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 Harradine & Michaels 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 CANBERRA

FILE NUMBER: CAC 438 of 2018

Ms Harradine

Applicant

And

Mr Michaels

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parties have provided consent terms to the Court for the final resolution of the property aspect of the proceedings between them.  This will still leave their proceedings in relation to their son on foot.  I raised questions with the parties as to whether or not the orders suggested by them provided for a just and equitable outcome in the division of property.  Having raised those questions I was helpfully addressed by the lawyers and in particular by Dr Behrens who identified a number of unusual features which attach to this particular case.

2. That combination of features leads me to come to the conclusion that the resolution proposed by the parties falls within the broad ambit of discretion that is available in these matters. 

3. The parties were together in a short de facto relationship that spanned a period of four years although was only on foot for between three to three and a half of those four years as the parties separated on a number of occasions.  At the commencement of the relationship the Father held a significant component of the property, made up in his case of $150,000 in current property and $50,000 in superannuation.  By the end of the relationship, or rather by the commencement of the proceedings in March 2018 the property held by the parties comprised $308,000 held in the name of the Father along with him holding $115,000 in superannuation and the Mother with $16,000 in superannuation.

4. It was put to me by Dr Behrens that this was an appropriate case to deal with the different aspects of property differently that is, to deal with the superannuation differently to the current assets.  This was put on the basis that in the context of a short relationship where each of the parties had undertaken paid employment and each had contributed to their superannuation that the superannuation interests held by the parties were each reflective of the contributions that they had made to those interests.  I accept that it is an appropriate approach to deal with the superannuation interests in that manner.

5. That then left the current property of the parties.  I note that there is now a child to the relationship between the parties.  Dr Behrens reminded me that X was only born a few months prior to the end of the relationship.  She accepted that had X been born earlier in the relationship a very different result might have flowed but she says that as a result of X's late arrival in the relationship the manner in which contributions to his welfare factor is reduced.  She accepted appropriately that there is still a significant contribution made by the Mother because she has had the primary care of X since the separation of the parties.  She also appropriately accepted that perhaps the dominant feature in driving a distribution of property will be in the Mother's ongoing care of X as it is anticipated that she will continue to have the primary care of X.  However, in that context, and in the context of what was a short and on and off relationship, it was the case that the Father's contributions were overwhelming at the commencement of the relationship and provided the springboard for the parties in terms of the acquisition of the property. 

6. It is an unusual case.  However, the proposal put forward by the parties which will see the Mother obtaining a distribution that equates to one third of the current property of the parties when one factors in the distribution already received by her falls within the broad range of what might be considered to be just and equitable in these matters.  Emphasis is properly placed on the disparity of the parties initial contributions and emphasis appropriately placed on the ongoing care that the Mother will have for X.  In those circumstances the orders suggested by the parties should be made and I make orders in those terms in the Terms of the Minute of Consent Orders initialled by me with today's date and placed upon the Court file.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 March 2019.

Associate: 

Date:  13 March 2019