Harrison and Harrison and Ors (No. 2)

[2009] FamCA 598

FAMILY COURT OF AUSTRALIA

HARRISON & HARRISON AND ORS (NO. 2) [2009] FamCA 598

FAMILY LAW – PROPERTY – Final property orders – s 79(2) Just and equitable

Family Law Act 1975 (Cth)

APPLICANT: MS HARRISON

RESPONDENT: MR HARRISON (by his Case Guardian MS E)

INTERVENOR: MR L HARRISON

SECOND RESPONDENT: MS N HARRISON

FILE NUMBER: MLC 7100 of 2007

DATE DELIVERED: 3 JULY 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 3 JULY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MRS PHELAN

SOLICITOR FOR THE APPLICANT: DE GRAAF & BIRKETT

COUNSEL FOR THE RESPONDENT: MR CANTWELL

SOLICITOR FOR THE RESPONDENT: JOHN GUTHRIE

COUNSEL FOR THE INTERVENOR: MR THOMPSON

SOLICITOR FOR THE INTERVENOR AND SECOND RESPONDENT: WILLIAMS WINTER

Orders

IT IS ORDERED BY CONSENT:

1. THAT on or before 2 October 2009 (“the due date”) the Husband transfer to the Wife at her expense all his right title and interest in the property situate and known as G property in the State of Victoria and being the whole of the land described in Certificate of Title Vol … Folio … and the Husband at his expense do all acts and things and sign all documents to discharge the mortgage to the National Bank registered on title prior to the transfer to the Wife and the Wife be responsible for the payment of all outstanding rates.

2. THAT by the due date the Husband pay or cause to be paid to the Wife the sum of $348,907 (“the payment”).  In default of payment by the due date interest shall accrue on the sum at the rate prescribed by the Family Court Rules and in the event the default continues until 31 December 2009 then the property situate and known as R property in the State of Victoria and being the land more particularly described in Certificate of Title Vol … Folio … (“the [R] farm”) be sold out of Court on such terms and conditions as are agreed and in default of agreement as ordered by the Court and at settlement of the sale the proceeds be applied as follows:

   (a)first, in payment of all costs and expenses of the sale;

   (b)secondly, in payment of the balance outstanding on the Torrens Limited mortgage and any other encumbrances;

   (c)thirdly, so much of the payment as is outstanding plus interest to the Wife;

   (d)fourthly, the balance equally to the Husband and the Intervenor.

3. THAT contemporaneously with the payment and transfer to the Wife she do all acts and things and sign all documents to withdraw all caveats lodged over real estate of the Husband and/or the Intervenor and/or the Second Respondent.

4. THAT the Husband, the Intervenor and the Second Respondent be equally responsible for payment of the mediator’s fees for the mediation which took place on 30 June 2009.

5. THAT contemporaneously with the payment the Wife transfer to the Husband at his expense all her right title and interest in the Y property at C in the State of Victoria and being the land more particularly described in Certificate of Title Vol … Folio … and K property at C in the State of Victoria and being the land more particularly described in Certificate of Title Vol … Folio … (“the [C] properties”).

6. THAT contemporaneously with the payment the Wife transfer to the Husband all her right and interest in water rights attaching to the said C properties and being those rights more particularly described in the attached record of the Water Register in Schedule “A” attached.

7. THAT contemporaneously with the payment the Wife transfer to the Husband all her right title and interest in the plant and equipment of the partnership known as the Harrison Partnership and do all acts and things and sign all documents required of to her retire from the partnership and transfer all of her partnership assets to the Husband.

8. THAT subject to the Wife complying with her obligations under these orders the Husband, the Intervenor and the Second Respondent indemnify the Wife in relation to any liability of the partnership described in Schedule “B” together with any taxation liability arising out of the partnership.

9. THAT contemporaneously with the payment the Wife transfer to the Husband all and any of her right title and interest in the assets of the partnership described in Schedule “C” and do all acts and things to surrender to the Husband, the Intervenor and the Second Respondent any entitlement she may have to losses or other benefits arising from her membership in the partnership.

10. THAT the Court declares that the property situate and known as R property in the State of Victoria and being the land more particularly described in Certificate of Title Vol … Folio … is beneficially owned by the Husband and the Intervenor as tenants in common in equal shares and that such entitlement is effective from 15 October 1975 and that since that date the Husband has held the property pursuant to a trust for the benefit of himself and the Intervenor.

11. THAT unless otherwise specified in these orders and except for the purpose 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)money standing to the credit of the parties in any joint bank account is to become the property of the Husband;

    (c)that each party retain the superannuation benefits belonging to them;

    (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.

12. THAT the Husband and Wife and the Intervenor and Second Respondent sign all documents and do all acts and things required to give effect to these orders.

13. THAT all orders for reserve costs be discharged.

14. THAT all extant applications be otherwise dismissed.

15. THAT each party pay their own legal costs.

16. THAT the proceedings be removed from the active pending cases list and the docket of Young J.

17. THAT all documents subpoenaed to Court be returned to the person who issued the subpoena.

18. THAT all exhibits be returned to the party who tendered the same.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for all parties.

IT IS NOTED:

A.THAT he court notes the parties intend these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7100 of 2007

MS HARRISON

Applicant

And

MR HARRISON (by his Case Guardian MS E)

Respondent

And

MR L HARRISON
Intervenor

And

MS N HARRISON
Second Respondent

REASONS FOR JUDGMENT

1. The matter of Harrison has been before me for a defended hearing.  Mr Cantwell, of counsel, appeared for the husband, for whom a case guardian, his sister, had been appointed.  Mrs Phelan, of counsel, appeared for the wife.  Mr Thompson appeared for both the intervener and the second respondent.  The matter commenced before me and I heard the evidence of a solicitor, Mr Johnson.  Thereafter, and before any of the parties were called to give evidence, the matter resolved at an out of court ordered mediation.  Ultimately, minutes of final orders have been prepared and are now presented to the court. 

2. I had read prior to hearing, and re-read during the hearing, all of the relevant affidavit material containing the evidence in the matter. The case had been extensively prepared by and on behalf of the parties and I had the benefit of summary of argument documents, a clear statement of orders sought and also comprehensive statements of the assets and liabilities in the matter. The consent orders are now before the court. They are intended to be final orders pursuant to section 79 of the Family Law Act 1975.

3. As to the wife, she takes, pursuant to paragraphs 1 and 2, the G home property and otherwise the cash payment of approximately $350,000 less some costs.  As between the husband and the intervenor, and to some extent the second respondent, they have otherwise adjusted their financial and property interests and their partnership.  I am satisfied that, through the case guardian, the husband has had proper knowledge of the facts and matters before the court.  He has been represented by experienced counsel and solicitor. 

4. I have read the affidavit, this day, from Ms E, which was filed in compliance with the Family Law Rules 6.13 and I am satisfied that she has fairly and properly discharged her obligation to her brother, the respondent husband. 

5. At the time of making these orders, I did raise with counsel for the intervenor and second respondent, paragraph 10 of the orders, not so much insofar as the declaration is identified, but rather the effective dating of that declared entitlement from 15 October 1975. 

6. On reflection, and given the evidence of Mr Johnson, both in his two affidavits and otherwise in his evidence-in-chief and under cross-examination, I am generally prepared to accept what is now the unchallenged evidence (save for Mrs Phelan’s cross-examination) of the intent of the deceased late father of the respondent and the intervenor, and otherwise the various expressions of intent of the respondent. 

7. That property known as the R farm, for the purposes of the documents and specifically relating to the now-converted certificate of title, registered in the sole name of the husband, is hereafter to be held by the husband and the intervenor as tenants-in-common in equal shares.  It has been expressed to the court, in submissions, that ultimately the husband will likely bequeath his half tenant-in-common share to his only remaining child.  I make no further comment or observation upon such future event. 

8. The issue that I raised with counsel was the date contained in the orders, being 15 October 1975, and on balance I accept that an argument could fairly be advanced for a pre-dating of the operation and effectiveness of the declaration. 

9. Whilst that form of order differs from the original form of order sought, insofar as the intervenor’s application and summary of argument is before the court, I accept that it was open to counsel to finetune the appropriate order and/or operative date in that regard.  Mr Thompson fairly indicated to the court this morning that he had intended to do so when it fell to him to open his client’s case. 

10. I am also accepting of the level of goodwill between the respondent and the intervenor.  They are brothers, they have had a lifetime relationship and that is ongoing, and it may well be that the husband relies upon the generosity and protection of the intervenor in the years to come. 

11. All in all, I will make orders in the form presented.  I do so with the knowledge that there are other commercial agreements, which are not before the court and have never been disclosed to the court, which will operate as between the husband, intervenor and/or second respondent.  I will have exhibits returned to the parties as this matter has now resolved and will not be the subject of any other proceeding or appeal in this court. 

12. I will have the costs letters, required pursuant to Rule 19.04, retained upon the court file in a sealed envelope.  The affidavit of the case guardian will be filed this day and be retained upon the court file.  I will request the solicitor for the intervenor to forward, by email transmission to my associate, the final form of orders which will be inclusive of the amendment to paragraph 11C as to superannuation, so that all parties are to retain any superannuation benefit that they now hold. 

13. Otherwise the matter will be removed from my docket of cases, and in that regard paragraph 16 of the draft orders will be amended and likewise the subpoenaed documents will be covered in order. 

14. In conclusion, therefore, I make the required declaration, pursuant to section 79(2) of the Family Law Act 1975, that the orders are just and equitable. I accept that the parties are all aware that these orders are final and resolve all proceedings of a property and financial nature, before 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: