JOHNSON & FINLEY

[2015] FamCA 682

FAMILY COURT OF AUSTRALIA

JOHNSON & FINLEY [2015] FamCA 682

FAMILY LAW – PROPERTY SETTLEMENT – Application for consent orders made out of time – leave granted pursuant to s 44(6) of the Family Law Act 1975 (Cth) to proceed after the standard application period – whether it is just and equitable to make orders in the terms of the minute of consent orders – final orders made in terms of the consent application

Family Law Act 1975 (Cth), s 44(6)

APPLICANT: Ms Johnson

RESPONDENT: Ms Finley

FILE NUMBER: MLC 6501 of 2015

DATE DELIVERED: 5 August 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 5 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Belcher

SOLICITOR FOR THE APPLICANT: Rochelle Belcher Lawyers

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. That pursuant to s 44(6) of the Family Law Act 1975 (Cth) the parties have leave to apply for property orders.

2. BY CONSENT IT IS ORDERED in accordance with the Minutes of Proposed Orders sealed and attached hereto AND IT IS DIRECTED that such Minutes remain upon the Court file.

BY CONSENT IT IS ORDERED

1. That within thirty days of approval of these orders the Applicant pay to the Respondent the sum of $15,000.00(“the payment”).

2. The contemporaneously with the payment the Respondent transfer all her right title and interest in the former cohabitational home situated at and known as B Street, Suburb C (“the property”) to the Applicant at the expense of the Applicant. 

3. The Applicant and the Respondent do all things necessary to discharge the mortgage in favour of Aussie Home Loans on the property and the Applicant refinance the said mortgage such that she will assume responsibility for and indemnify the Respondent in relation to all encumbrances on the property. 

4. Until payment the Respondent to have the sole right to occupy the real property.  During such right of occupation the Applicant and the Respondent continue to share equally the responsibility for payment of all instalments due under the mortgage and all rates and taxes. The Respondent is otherwise solely responsible for all outgoings of the real property as they fall due;

5. The parties hold their respective interests in the real property upon trust pursuant to these orders;

6. Neither party encumber the real property without the consent of the other party

7. That in the event that the whole of the payment has not been made within 30 days of the date, the real property be forthwith sold altogether out of Court (“the sale”).

   (i)       firstly to pay all costs, commissions and expenses of the sale;

   (ii)secondly to discharge the mortgage and any other encumbrance affecting the real property;

   (iii)thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly from the date to the Respondent;

   (iv)fourthly the balance to the Applicant.

8. That liberty be reserved to either party to apply with respect to the terms conditions and execution of the sale.

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

   10.1that 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;

   10.2that each party forego any claim they may have to any superannuation benefits belonging to or earned by the other;

   10.3that each 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;

   10.4that any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

THE COURT FURTHER NOTES:

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Johnson & Finley 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 6501 of 2015

Ms Johnson

Applicant

And

Ms Finley

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me today in a Judicial Duty List. 

2. The applicant filed an application for consent orders on 10 July 2015.  The applicant and the respondent lived in a de facto relationship.  They separated in April 2013; hence the application for final property orders pursuant to s.90SM of the Act is an application that is made out of time. 

3. Today I have entertained an oral application on behalf of the applicant for leave to apply after the end of standard application period, pursuant to s 44(6) of the Family Law Act 1975 (Cth). 

4. Section 44(6) of the Act provides that the court may grant a party leave to apply after the end of the application period if the court is satisfied that hardship would be caused to the party or a child if leave were not granted.

5. It is submitted on behalf of the applicant today that such hardship would be occasioned on both parties were I not to grant that leave.

6. The parties have provided to me a statement of agreed facts, which was filed on 31 July 2015.  It provides a detailed background as to the parties’ history. 

7. The parties commenced cohabitation in 2010 and separated in April 2013.

8. The applicant is aged 45 years and is self-employed.  She enjoys good health. 

9. The respondent is aged 51 years and is employed in management.  The respondent also enjoys good health. 

10. There are no children of the relationship. 

11. The statement of agreed facts sets out with precision the contributions made by each of the parties at the time they entered their relationship.  The proposed property orders address what is to occur with respect to a property in Suburb C.  That property is jointly owned. 

12. It is submitted on behalf of the parties that to refuse leave would deprive the parties of the opportunity of finalising their financial relationship.  Simply put, there needs to be orders in place to provide for an orderly division of the assets that have been acquired by the parties during their relationship. 

13. The application made is made some four to five months out of time. 

14. In all of the circumstances and having regard to the background, I am satisfied that it is appropriate that I grant leave for the application for property orders.  I am satisfied that the parties would suffer hardship were leave not granted. 

15. The respondent does not appear at Court today.  I have a letter dated 31 July 2015 from the respondent’s solicitor confirming consent of the respondent to the application for leave and for the making of orders in the terms of the minute of consent signed by the parties.  Further, I have the statement of agreed facts which is signed on behalf of both parties, and filed at Court. 

16. In the circumstances, I propose to make orders in the terms of the proposed minute of order, which is dated 29 June 2015.  I am satisfied that it is just and equitable to make those orders.  I am satisfied that the orders are appropriate and in the range of likely outcomes had the matter required a hearing, having regard to the relevant provisions of the Act. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 5 August 2015.

Associate:

Date:  5 August 2015