Jackey and Jackey

[2008] FamCA 232

FAMILY COURT OF AUSTRALIA

JACKEY & JACKEY [2008] FamCA 232

FAMILY LAW – PROPERTY SETTLEMENT – Negotiations for adjustment broken down on two issues.  Both parties anxious to resolve the financial issues after negotiation with the NAB.  Application adjourned for further management.

Family Law Act 1975 (Cth) (as amended)

APPLICANT: Mrs Jackey

RESPONDENT: Mr Jackey

FILE NUMBER: MLF 2182 of 2006

DATE DELIVERED: 25 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 25 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Grice

SOLICITOR FOR THE APPLICANT: Grice & Grice

THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That all extant applications be adjourned for final hearing on a date to be fixed under the management of the Honourable Justice Cronin.

2. That the ex tempore judgment delivered this day be transcribed, placed on the Court file and made available to each of the parties.

IT IS CERTIFIED

1. That pursuant to rule 19.51 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor acting as Counsel.

NOTATION:

1. The parties propose to continue settlement discussions and in the event the matter is resolved prior to 30 April 2008, leave be granted to the parties to have the matter listed for a mention before the Honourable Justice Guest for the taking of Consent Orders.

1. In the event the matter does not resolve and insofar as it is practicable to do so, the further final hearing be expedited.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2182  of 2006

Mrs Jackey

Applicant

And

Mr Jackey

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me for mention this day pursuant to an order I made on 14 February 2008 when I adjourned all extant applications to 25 March 2008.  On that day, Ms Stoikovska of counsel appeared for the applicant wife and Ms Devine of counsel for the respondent husband.  A Notation to my order records that the reason for the adjournment was to ascertain, as a matter of procedural fairness, the response of ESSSuper to a proposed settlement arrangement between the parties.  Messrs Grice and Grice act as practitioners for the wife.  The firm of Mal Ryan and Glen had acted as practitioners for the husband in the past, but this morning filed a Notice of Ceasing to Act.  He now appears in person.  Mr Grice appears this day before me. 

2. The proceedings between the husband and the wife are property based, and pursuant to an order made by me on 19 December 2007, I listed the contest for final hearing and determination before me on 14 February 2008.  Between those two dates the matter was adjusted, save as to one issue arising from the husband's interest in the ESSSuper fund (which I will hereafter describe as “the fund”).  There was an issue of procedural fairness and whether a penalty would be attached to the various proposals advanced by each of the husband and the wife. 

3. By way of short background, the wife was born in March 1951.  I note from her affidavit of evidence‑in‑chief filed on 22 October 2007 she deposed that she was unemployed and that her sole source of income was a widow's pension from Centrelink in the sum of $200 per week.  The husband was born in March 1952.  As I understand it, he is employed by the Victorian Government and works in regional Victoria.  He earns a substantial salary.  The wife has not repartnered.  The husband has, the wife deposing that the husband resides in a domestic relationship with a Ms G.

4. The parties did not reside together prior to marriage.  They married in February 1973.  There were two children born of their union, two daughters, both of whom now are adults, independent and self‑supporting.  The husband and the wife resided together until 1 January 2006 and then separated.  The parties have since lived continuously separate and apart. 

5. In brief, the assets of the parties comprise the former matrimonial home at E which is valued at approximately $300,000 and a holiday home at M, which is valued at about $290,000.  The wife resides in the former matrimonial home and the husband resides in the property at M.  The total mortgages on the property amounts to approximately $120,000. 

6. The husband's interest in the fund to which I have earlier referred totals approximately $640,000.  There is on the file a report of a single expert, Mr W of O & Associates, dated 1 February 2008, setting out the usual matters relating to the husband's interest in the fund.  Mr Grice has explained to me that following further investigation, the wife's claim for “a splitting order” of the fund will result in the imposition of a penalty of approximately $60,000.  It is the husband's proposal to seek “a flagging order” in the expectation that he will be retiring in about five years' time and which will not attract penalty.  Hence the issue is to decide what course should be taken in light of the dispute between the parties to the husband's interest in the fund.   

7. There is another problem, and that arises from a business loan that was advanced in the name of the parties to their younger daughter, who is now 35 years of age.  Originally the business loan amounted to $90,000 but is currently $83,000.  The daughter has closed the business and has disassociated herself, regrettably, from the loan so that the National Australia Bank is looking to the parties for repayment of the capital sum.  It is due for repayment shortly, as has been explained to me by the husband and he is soon to meet with the manager at the NAB to see seek resolution.  He is currently servicing both loans. 

8. What the husband seeks to do is to “accumulate” both loans into a package and thereafter endeavour to reduce capital.  He complained that his wife would not communicate with him and he was somewhat concerned that there would be opposition to that course.  However, Mr Grice, and properly in my view, has made it quite clear that the wife will cooperate in achieving the best economic result for both parties in negotiating with the bank.  That is good, sound commonsense. 

9. It is regrettable that the negotiations have broken down and agreement cannot now be reached in the light of the two problems to which I have adverted.  However, Mr Grice has again said, sensibly in my view, that the parties will retain an open view to an adjustment, if possible, of the dispute between the two of them.  To proceed into a contested hearing would be a financial drain upon the parties' funds, hard-earned over many years of union together. 

10. It seems to me to be a matter capable of a sensible adjustment.  I have indicated to Mr Grice that I am not sitting after the end of March 2008, but in the event that this matter is adjusted prior to my actual retirement on 2 May 2008, he should simply contact my Associate and make arrangements for a 9.30 am mention to take the consent orders.  In the event that it is not adjusted, what I propose to do is to adjourn this matter to Cronin J for management.  I will direct that a copy of the short extempore remarks I have made this day be transcribed, placed on the court file and made available to the parties.  Thus it will be that any successor to me, in the event the matter is not adjusted, will be alert to the two remaining issues in dispute between the parties.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  10 April 2008