Hitchens and Mulbury

[2007] FamCA 1111

FAMILY COURT OF AUSTRALIA

HITCHENS & MULBURY [2007] FamCA 1111

FAMILY LAW - PROPERTY – Interim financial application in Judicial Duty List -   Opportunity taken to negotiate an overall resolution - Agreement met and final consent orders made with removal from the Active Pending Cases List.

Family Law Act 1975 (Cth) s 79(4)

APPLICANT: Ms Hitchens

RESPONDENT: Mr Mulbury

FILE NUMBER: MLC 3434 of 2007

DATE DELIVERED: 31 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 31 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Atkinson

SOLICITOR FOR THE APPLICANT: Arnold Dallas & McPherson

COUNSEL FOR THE RESPONDENT: Mr Bradshaw

SOLICITOR FOR THE RESPONDENT: Heinz & Partners

Orders

1. That the wife pay to the husband the sum of $110,000 ("the payment") on before 2 November 2007 ("the date").

2. That forthwith upon and contemporaneously with the payment, the husband do all such acts and things and sign all such documents necessary to transfer to the wife, at the wife's expense, all of his right, title and interest in:

   (a)the property situated at and known as the M property being the land described in certificate of title volume … Folio … ("M") to be retained by the wife;

   (b)the parties' joint CBA bank account number … (hitherto held on trust for the child L) and account number … (hitherto held on trust for the child P) to be retained by the wife;

   (c)shareholding hitherto held by the parties in trust the children L and P in the following companies: Foster's Group Ltd, BHP Billiton, National Australia Bank Ltd, such shareholdings to be retained by the wife.

3. That the wife (if necessary) forthwith resign as director of D Pty Ltd, transfer her shares in that company to the husband or his nominee and assign to the husband or his nominee any rights or powers she may have under the deed of settlement of the D Family Trust.

4. That the husband be solely liable for and indemnify the wife against all payments in respect of the CBA Ltd overdraft account number … in the name of D Pty Ltd.

5. That the husband pay and forever indemnify the wife in respect of any personal liability she has to D Pty Ltd and/or the D Family Trust as shown in the books of account of the company and trust and indemnify the wife and keep the wife indemnified in respect of any personal liability including income taxation liability she may have by reason of her being or her having been a director, secretary or other officeholder, shareholder or otherwise in either of the company or trust.

6. That in the event that the whole of the payment has not been made by the date then the husband and the wife sign all documents and do all things necessary such that the M property be sold altogether out of Court ("the sale") and upon completion of the sale, the sale proceeds be applied:

   (a)first to pay all costs, commissions and expenses of the sale;

   (b)secondly to discharge any encumbrance affecting M property;

   (c)thirdly so much of the payment as is outstanding together with interest thereon at the currently prevailing rate at the date of default in accordance with the Family Law Rules, adjusted monthly, from the date to the husband;

   (d)fourthly the balance to the wife.

7. That pending the payment or completion of the sale:

   (a)the wife have the sole right to occupy the M property and that during such right of occupation the wife be responsible for all rates and taxes and like apportionable outgoings of the M property as they fall due;

   (b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and

   (c)neither party encumber the real property without the consent in writing of the other save (if applicable) for effecting the payment.

8. That the wife further retain her invested funds with Asgard, her Nissan Gazelle and Nissan Skyline cars.

9. That the husband further retain the Toyota Dyno truck, his Toyota LandCruiser (each registered to D Pty Ltd) the Ford Utility, the Harley Davidson motorcycle, his interest (as remainderman or otherwise) in the property at T together with all his interests, benefits and entitlements in the REST and CBUS superannuation funds.

10. That on or before 28 September 2007, upon 48 hours notice from the husband, the wife make available for collection from the M property by a courier company retained by the husband as agent for the husband ("the agent"):

    (a)the LG LCD rear projection screen television (currently in the loungeroom);

    (b)the Yamaha sound system (including "Band W" speakers);

    (c)a reasonable share (or copies of) photographs of the children P and L

    and, at the same time, the agent deliver up to the wife on behalf of the husband the hand controls removed from the Toyota LandCruiser (all such items to be in working order).

11. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders;

    (a)each 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 (the furniture, personal possessions, and like chattels in the M property being deemed to be in the possession of the wife).

    (b)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other. 

    (c)Insurance policies remain 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 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.

12. That the wife be granted leave to withdraw the application filed 22 August 2007 wherein she has sought change of name for the children.

13. That the return hearing date, being 24 September 2007, for such application be vacated.

14. That all further extant applications of the husband and the wife respectively filed in these proceedings be otherwise dismissed.

15. Certify for counsel and for solicitor acting as counsel.

IT IS DIRECTED:

1. That all property/ financial/ change of name issues be removed from the Pending Cases List.

2. That the Minutes of Consent orders remain on the Court file.

3. That the solicitor for the wife file 3 clean copies of these Orders within seven days.

THE COURT NOTES:

A.That the parties intend that these orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

B.       That the wife intends to effect the payment prior to the date if practicable. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3434 of 2007

MS HITCHENS

Applicant

And

MR MULBURY

Respondent

REASONS FOR JUDGMENT

1. This matter comes to me in the Judicial Duty List.  Mr Atkinson appears for the applicant wife and Mr Bradshaw for the respondent husband.  I had the opportunity of addressing both the husband and the wife in relation to the various issues before the court and the possible management of those issues into the future. 

2. There had previously been welfare issues contested by the parties concerning their two children, P, who was born in July 1992 and L, born in January 1994. Those issues have been sensibly resolved and all that remains is the property dispute pursuant to section 79(4) of the Family Law Act 1975 (as amended), and an application by way of Form 2 issued by the wife concerning a name change.

3. I had read the papers prior to court.  Given the attendance of both Mr Atkinson and Mr Bradshaw, whom I know as experienced practitioners in this jurisdiction and given the issues before the court, I took the opportunity to address the parties generally, as I said, in relation to the advantages of an overall adjustment in the discrete circumstances of this case.  I pointed out that any decision by the court is not just a guess in the dark, but an exercise of discretion built within the parameters of one-third of a century of precedent.  I estimated that given the experience of both Mr Atkinson and Mr Bradshaw in achieving resolution in matters such as this, that any differential in relation to their advice would make the avenue of expensive litigation a commercially unviable proposition.

4. The parties have now negotiated at arm's length and in the result arrived at a sensible and dignified adjustment.  I appreciate that this is a resolution not easily achieved and, to a certain extent, there may be subsequent overlays of self-doubt such as "Have I done the right thing?”  I wish to emphasise to the parties that I understand such a position, but in the fullness of time I am confident that they will appreciate the importance of this day as being a day in which they have moved forward into the future with dignity. 

5. One of the more pleasant aspects in court, if I may say this almost in a philosophical way, is seeing litigants adjust matters in a sensible manner.  Both the husband and the wife have achieved this and I offer them both my congratulations on having the strength, the ability and the good common sense in rationalising their own future.  In so doing, they have avoided the litigious highway down which they would have travelled and then having a judgment foisted upon them in a schoolmasterly way by a judge of this court. 

6. The adjustment set out in the Minutes of Proposed Orders is fair.  It is just and it is equitable.  It sits satisfactorily within what any judicial officer of this court would have done on the financial structure before me.  The parties have saved themselves a lot of anxiety and for that they are to be congratulated.  I do not leave out of that equation the professionalism of both Mr Bradshaw and Mr Atkinson in facilitating this adjustment.  It does not go unnoticed with me.

7. I am aware of the factual matrix of the case.  I have had a helpful explanation from Mr Atkinson, from which Mr Bradshaw draws no dissent and otherwise in a helpful manner adds additional factors into the rationale for the adjustment.  There are obligations on judges such as myself to be satisfied that orders are just and equitable, notwithstanding that they are to be made by consent.  I am satisfied that such is the position and I propose to make the proposed orders.

8. I mark the Minute of Consent orders Exhibit “A”.  I make orders in terms of Exhibit “A”.  I direct the solicitors for the applicant wife to engross the orders and I note the removal of the proceedings from the Active Pending Cases List. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  20 September 2007.