Hills and Tessia

[2014] FamCA 597

FAMILY COURT OF AUSTRALIA

HILLS & TESSIA [2014] FamCA 597

FAMILY LAW – Consent orders – Leave out of time unopposed – Unrepresented litigant – Outcome just within range – Orders made

Family Law Act 1975 (Cth)

APPLICANT: Mr Hills

RESPONDENT: Ms Tessia

FILE NUMBER: MLC 1306 of 2013

DATE DELIVERED: 3 June 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 June 2014

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Taifalos

SOLICITOR FOR THE RESPONDENT: Noble House

Orders

1. That leave is granted pursuant to s 44(6) to the parties to seek orders.

2. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

3. That the solicitor for the respondent engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

4. That the reasons this day be transcribed and be placed on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hills & Tessia 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 1306 of 2013

Mr Hills

Applicant

And

Ms Tessia

Respondent

REASONS FOR JUDGMENT

1. I am going to grant this application, but I do so with considerable hesitancy.  This is an application filed by a person who is not represented, seeking that the Court make final property orders between he and his former partner under the de facto relationship provisions of the Family Law Act 1975 (Cth) (“the Act”).

2. The only material before the Court consists of two documents.  One is the application for consent orders and the other is the minutes of orders themselves.  I have considerable disquiet about the details set out in the application for the consent orders because I am not entirely sure that it reflects actually what is happening.

3. The provisions of s 90 of the Act require the Court not to make an order unless it is satisfied that it is just and equitable to do so. Thus, for me to make the orders, regardless of what the parties might say, I have to be satisfied that this is a fair outcome for both parties. Fairness is obviously a very subjective term. In this case, the disparity of outcome does not look all that significant having regard to the figures that have been presented to the Court on page 21 of the document that was filed on 23 April.

4. That said, I am not entirely sure that I understand where these figures came from.  A number of explanations have been given to me by the solicitor on behalf of the respondent.  Explanations have been given that there was money received during the relationship from a redundancy.  There are questions of the respondent’s contribution towards the family, including children not necessarily associated with the parties – there is a whole series of issues in this case that make the assessment of what is fair, very difficult.

5. I am not at all comfortable about the use of percentages in this case because it is the underlying value of an asset received by a party rather than the percentage that must be just and equitable. Having said that, the applicant on 16 April this year, swore an affidavit in which he said that he had read the provisions of s 72, s 79 and subs 75(2) of the Act, along with the relevant equivalents in Part VIIIB of the Act. Having regard to what I have heard today, I have considerable disquiet as to whether indeed he has. He says also in that affidavit that he has had some legal advice. If he has, I am not entirely sure whether that advice was on the same lines of the questions that I have raised.

6. There is also a superannuation splitting order in this case.  Just exactly how that would operate is another question, but what I have been told is that when the applicant approached the superannuation trustee, they said it could not be done without a court order.  To the extent that that was actually said – that is clearly wrong. 

7. I have encouraged the parties on a couple of occasions today to say that if the Court was not satisfied about these orders, they could go and implement them themselves anyway, without a Court order.  Neither of them wants to do that.  Thus, what I have to look at, is whether in fact, I feel comfortable about the orders as well as the background which gives rise to them.

8. In simple terms, what is now occurring is that the applicant is to retain a home in Suburb B and he will borrow $50,000 and he will also make a transfer of a portion of his superannuation under s 90MT of the Act.

9. At best, I could say that these orders are within the possible range of what might be the outcome of the case if it was litigated.  That range is obviously very wide and very much subject to the subjective judgment of the particular person who has to make the decision.

10. My view is that it – if it is within the range, and I find it is, then it is at the very bottom of the range.  On the basis that the applicant understands what he is doing, insists on pursuing the application, the respondent, who is represented, has had her legal advisors urge the Court to make the orders, so no doubt they have given her advice and she takes the responsibility if the orders are made.

11. In the circumstances, I will make the order that I am satisfied that this is a just and equitable outcome for both parties.  I will make final orders in terms of the minutes.  I will order that the solicitors for the respondent provide to my associate within seven days a copy of the minutes.  I will order that these reasons be transcribed and be placed on the Court file. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 June 2014.

Associate: 

Date:  25 July 2014