Kennedy and Kennedy

[2010] FamCA 51

FAMILY COURT OF AUSTRALIA

KENNEDY & KENNEDY [2010] FamCA 51

FAMILY LAW – CONSENT ORDERS

Family Law Act 1975 (Cth)

APPLICANT: Ms Kennedy

RESPONDENT: Mr Kennedy

FILE NUMBER: MLC 11036 of 2007

DATE DELIVERED: 22 January 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 22 January 2010

REPRESENTATION

THE APPLICANT:	In Person
THE RESPONDENT:	By Letter

Orders

1. 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.

2. That the wife forthwith serve the trustee of the superannuation fund with a copy of these orders.

3. That the trustee have liberty to apply by 4.00pm on 19 February 2010 in the event that they have some concerns as to the said superannuation splitting orders.

4. That all extant applications be otherwise dismissed.

5. That a transcript be obtained in respect of the evidence of the wife this day and be placed on the court file.

6. That my reasons for judgment be transcribed.

7. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11036 of 2007

MS KENNEDY

Applicant

And

MR KENNEDY

Respondent

REASONS FOR JUDGMENT

1. I have been asked to make final parenting and property orders as between Mr and Mrs Kennedy.  The husband is not here today.  As I understand it, he is working in Western Australia.  The matter came before me on 20 November 2009 for a first day of hearing, and I made a variety of orders then, predominantly around the issue of the parties’ child, who was born in August 1995.  Subsequent to that date, all of the issues in relation to the child have been sorted out, to the parties’ credit, and I have been asked to make orders today which, on any view, seem to me to be very sensible. 

2. The parties have also sorted out the property issues.  I have read the file of the material that each party provided in 2007, and the wife tells me that there is no change in the financial position of any substance.  She points out that at the conclusion of their relationship, neither party had any assets of any significance.  Why the matter came before me today in the absence of the husband was that the parties reached agreement some days ago, and the husband signed some minutes and sent them to the court.  There was nothing controversial in the parenting issues, but in respect of the property issues, there was a paragraph relating to spousal maintenance, which I indicated to the wife today that I was not prepared to make.

3. In the time since I had that discussion, the wife had contacted the husband, and he has agreed to the removal of that clause, so that the orders can now be made without difficulty.  The other property that the parties have related to superannuation, and to say the least, it is modest.  There is an agreement in the parties’ orders that there will be a superannuation splitting order of $40,000 out of the interest of the husband in the flexible lifetime superannuation plan to the wife.  Looking at the figures that the parties presented in 2007, and which presumably have not altered substantially, that sounds like a very sensible conclusion, because there is very little other property. 

4. Unfortunately, although the wife says that she has provided to the court a letter from the trustee confirming receipt of the proposed orders, it does not appear to be anywhere on the file.  I have searched through all of the pieces of paper, and there is nothing here.  Because of the fact that the trustee is entitled to procedural fairness before I make an order with finality, it is important that they be given an opportunity to say whether or not they have any objections to the order, for a variety of reasons.  In this case, I propose, rather than the matter coming back again, to order that the wife serve a copy of the orders on the trustee with an indication that they have until 19 February this year to set aside the orders, in the event that they feel that they are inappropriate.

5. Apart from that, and presupposing there are no further issues arising out of the property matters, I am satisfied that the orders are just and equitable as between them. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  2 February 2010