HILL & JASPER

[2015] FamCA 507

FAMILY COURT OF AUSTRALIA

HILL & JASPER [2015] FamCA 507

FAMILY LAW – PROPERTY – orders by consent – where orders previously made by consent – whether orders should be set aside - where papers referred to relevant authorities. 

APPLICANT: Ms Hill

RESPONDENT: Mr Jasper

FILE NUMBER: CSC 83 of 2013

DATE DELIVERED: 30 June 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 30 June 2015

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr Cameron, Williams Graham Carman

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER

1. In the terms of the Minute of Order Annexure “A”.

AND IT IS FURTHER ORDERED

1. The original Minute of Order signed by the parties be placed and kept on the Court file.

2. All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.

AND IT IS FURTHER ORDERED THAT

1. A Registrar of the Court forward a copy of:

   (a)the Application for Consent Orders made on 22 February 2013;

   (b)the Consent Orders made 26 March 2013;

   (c)the Initiating Application filed by Ms Hill on 22 December 2014;

   (d)the affidavit of Ms Hill filed on 22 December 2014;

   (e)the Response to Initiating Application filed by Mr Jasper on 28 April 2015;

   (f)the affidavit filed by Mr Jasper on 28 April 2015;

   (g)the Application in a Case filed by Mr Jasper on 28 April 2015;

   (h)Exhibit 1;

   (i)the Order made 16 June 2015 as amended that day;

   (j)the Reasons for Judgment, when delivered, 

   to the Attorney-General’s Department under cover of a letter directing the Attorney-General to my comments as contained in the Reasons for Judgment when delivered in relation to the possible commission of a crime.

2. A Registrar of the Court forward a copy of the documents listed above to the Queensland Law Society and the Legal Services Commission, Queensland.

MINUTE OF ORDER

IT IS ORDERED BY CONSENT

1. That the final Order of the Family Court of Australia at Cairns in these proceedings made by consent on 26 March 2013 be and hereby is set aside.

2. That within seven (7) days of the date of this Order the Respondent do all acts and things and sign all documents necessary to:

   (a)cause the sale proceeds of the property known as B Street, Suburb C in the State of Queensland and described as Lot … on Registered Plan …, County of D, Parish of E, Title Reference … (“the Suburb C Property”) held in the Trust Account of Carl Edwards Solicitor be released to the Applicant;  and

   (b)pay to the Applicant an amount of money equal to $367,000.00 less the amount received by the Applicant pursuant to paragraph 2(a) above.

3. That within six (6) months of the date of this Order the Respondent must pay the Applicant a further twenty thousand dollars ($20,000.00).

4. That unless this Order provides to the contrary:-

   (a)all documents necessary to transfer any property (real or otherwise) to give effect to any transaction pursuant to the terms of this Order be prepared by the party receiving such property or the benefit of such transaction;

   (b)the party receiving any property or the benefit of any such transaction be responsible for payment of taxation, stamp duty, registration fees, legal costs and outlays in relation to effecting the transfer of any property or the receipt of any benefit of such a transaction pursuant to the terms of this Order;

   (c)each party mutually release the other in respect of any and all actions, claims, suits, demands and debts as and against the other.

5. That unless specified in this Order and except for the purpose of enforcing the payment of any money due under this 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)monies standing to the credit or debit of the parties in any bank account is to become the property of the person named as the owner of the bank account;

   (c)each party hereby foregoes any claim they are to have to any superannuation benefits belonging to or earned by the other;

   (d)all insurance policies shall become the sole property of the owner named thereunder;

   (e)each party shall 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 upon receipt of that property by the recipient pursuant to this Order.

6. That each party have liberty to apply back to the Court in relation to the interpretation of the terms of these Orders upon giving of seven (7) days notice to the other party.

7. In the event that either party fails, refuses or neglects (within fourteen (14) days of receiving a request to do so) to sign any documents or do anything necessary to give effect to the terms of these Orders than pursuant to Section 106A of the Family Law Act 1975 (as amended):

   (a)the Registrar or Manager of the Family Court of Australia at Cairns is hereby appointed to execute any deed or instrument in the name of the defaulting party and to do all such acts and things necessary to give validity to the operation of the Deed or instrument and to give validity and operation to these Orders;

   (b)the Affidavit of the Solicitor for the party seeking to give effect to these Orders shall be sufficient proof of the default of the other party

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hill & Jasper 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 BRISBANE

FILE NUMBER: CSC 83 of 2013

Ms Hill

Applicant

And

Mr Jasper

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I intend to make orders in terms of the Minute of Order signed by the parties, which form Exhibit 1 of the proceedings. I do so cognisant of the contents of s 90SN(2) of the Family Law Act and taking into account the submissions made by each of the parties to the effect that the terms of the order proposed to be made are just and equitable.  I am satisfied, in the circumstances, it is just and equitable to make the order that the parties seek be made by consent. 

2. In doing so, the order to be made will be absent that which is contained in clause 1 of Exhibit 1, namely, the declaration that the Court has jurisdiction to make the orders. 

3. Instead, I make the orders on the basis that I am satisfied that the Court has jurisdiction to make the orders sought by the parties because, despite asserting more recently that the parties separated in 2008, Ms Hill subsequently adopted the submissions made by Dr Sayers, who appeared on behalf of Mr Jasper, in support of a conclusion as to jurisdiction. 

4. She did not demur from his submissions as to the manner in which the Court should regard the contents of annexure “DJJ7” to the affidavit of Mr Jasper filed 28 April 2015, that being an email by her agent dated 14 November 2012 by which there was attached a proposed Application for Consent Orders in which there is an assertion that separation of the parties occurred on 20 March 2009. 

5. On the basis of the fact that there was an acceptance and adoption by Ms Hill of Dr Sayers’ submissions and no demurrer to the basis upon which he made them, it appears that both parties assert to the Court that separation occurred on a date after 1 March 2009. 

6. Because of this, the Court has jurisdiction to make the orders sought to be made by consent, there being, of course, no discretion accorded to a Court about whether to exercise jurisdiction or not once satisfied that such jurisdiction has been established. 

7. As noted earlier, on the material before me, given that the parties have demonstrated their consent to the terms outlined in Exhibit 1 and that, as a consequence of the making of an order in such terms, their financial interrelationship will finally be brought to an end, I am satisfied - within the broad ambit of matters and discretions about which minds may reasonably differ - in terms of assessment of justice and equity as between parties, that, in all the circumstances, it is just and equitable to make the orders. 

8. For those very short reasons, then, the orders will be made by consent in the terms I have outlined: that is, in terms of Exhibit 1 absent the contents of clause 1 of that proposed Minute of Order. 

9. In relation to further orders that I intend to make, I will deliver written reasons for judgment at a later time. 

10. The additional orders will be as follows:  that a Registrar of the Court forward a copy of the Application for Consent Orders filed 22 February 2013, the consent order made 26 March 2013, the Initiating Application filed by Ms Hill on 22 December 2014, the affidavit of Ms Hill filed on 22 December 2014, the Response to Initiating Application filed by Mr Jasper on 28 April 2015, the affidavit filed by Mr Jasper on 28 April 2015, the Application in a Case filed by Mr Jasper on 28 April 2015, a copy of Exhibit 1, a copy of the order made 16 June 2015 as amended that day and a copy of the Reasons for Judgment, when delivered, to the Attorney-General’s Department under cover of a letter directing the Attorney-General to my comments as contained in the reasons for judgment when delivered in relation to the possible commission of a crime. 

11. Additionally, I order that a Registrar of the Court forward a copy of the documents just listed to the Queensland Law Society and the Legal Services Commission Queensland.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 June 2015.

Associate:     

Date:    30 June 2015