Higgins and Davies

[2013] FamCA 1094

FAMILY COURT OF AUSTRALIA

HIGGINS & DAVIES [2013] FamCA 1094

FAMILY LAW – PROPERTY

APPLICANT: Ms Higgins

RESPONDENT: Mr Davies

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9784 of 2013

DATE DELIVERED: 18 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 18 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wainwright

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Shergold

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. That pursuant to s 44(6)(a) leave be granted to the parties to apply for a property settlement out of time.

BY CONSENT IT IS ORDERED:

1. That the parties do all such things and sign all such documents as may be necessary to authorise B Pty Ltd to distribute the funds held by them as follows:

   2.1First, to pay fees owed to B Pty Ltd;

   2.2Second, to pay the Wife the sum of $10,000;

   2.3Third, the balance remaining to be divided equally between the parties.

2. That unless otherwise specified in these Orders and save for the purposes of enforcing the payment of any monies due under these or any subsequent Orders:

   3.1Each 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;

   3.2Monies standing to the credit of the parties in any bank account are to become the property of the party in whose name the account is registered;

   3.3Each party retain and the other relinquish any interest in any superannuation benefits or work related benefits or entitlements belonging to or earned by the other;

   3.4Insurance policies remain the sole property of the owner named thereon;

   3.5Each 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;

   3.6Each party be solely liable for and indemnify the other in relation to any credit card liability in their name;

   3.7Each party be solely liable for and indemnify the other in relation to any taxation liability in their names or in the name of any business, partnership, company or trust in which they have an interest; 

   3.8Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

3. That pursuant to s 90ST the parties intend that these Orders shall as far as practicable finally determine financial matters between them.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Higgins & Davies 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 9784 of 2013

Ms Higgins

Applicant

And

Mr Davies

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. In the matter of Higgins & Davies, I have heard submissions today on behalf of both parties in which they join to seek leave pursuant to s 44(6) of the Family Law Act1975 to issue an application out of time for the making of consent orders which will finalise the financial arrangements between the parties.

3. In accordance with the provisions of s 44(6)(a) of the Act I am satisfied that there will be hardship to the parties if they are unable to obtain such leave. It has been submitted on behalf of the parties that due to the responsibilities with respect to the care arrangements of the five children and issues with respect to alleged family violence that there was a delay in obtaining legal advice. That delay has meant that the application was not made to the Court within time.

4. Having heard those submissions and having regard to the fact that the parties come to the court together to seek the order for such leave, I am satisfied that it is appropriate to grant leave in the circumstances of this case.  Accordingly, order 1 of the proposed minute will be an order of the Court that leave be granted. 

5. I have further heard submissions in support of the making of final property orders today. 

6. The background to this matter is that the parties have had a 16 year relationship.  They are aged 41 and 42 respectively.  They are each employed.  There are five children of the relationship aged between 14 and 18 years.  The parties share the children’s care.  The parties have a pool of assets valued at approximately $208,000 (being the sale proceeds of the former matrimonial home) together with superannuation of $47,000.  The proposed settlement will provide that the applicant will receive the first $10,000 of a payment and thereafter an equal division of the balance of the proceeds of the sale of the former matrimonial home.  Therefore, it is anticipated that the applicant will receive something in the order of 53 per cent of the available pool.  That adjustment in her favour, I am told, is reflective of the greater contributions made on her behalf. 

7. I am satisfied that it is just and equitable to make orders in this matter. 

8. I am satisfied that the proposed orders are just and equitable and appropriate having regard to the provisions of the Family Law Act. Accordingly, I will make orders in the terms of the minute signed by the parties noting, however, that the first order will be an order of the Court and the balance of the orders will be orders to be made by consent. I will mark the minute of order with the letter A. It will remain on the court file, and I direct that the applicant’s solicitor engross the orders and if they could be filed at court within seven days.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 18 December 2013.

Associate: 

Date:  18 December 2013