KENT & SULLIVAN

[2015] FamCA 620

FAMILY COURT OF AUSTRALIA

KENT & SULLIVAN [2015] FamCA 620

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)

APPLICANT: Mr Kent

RESPONDENT: Ms Sullivan

FILE NUMBER: MLC 4078 of 2015

DATE DELIVERED: 7 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 7 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ghislett

SOLICITOR FOR THE APPLICANT: Robertson Hyetts

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Vines Lawyers

Orders

IT IS ORDERED THAT

1. Leave be granted to the Applicant husband to apply after the standard application period has expired for orders pursuant to s 90SM of the Family Law Act 1975 (Cth).

IT IS ORDERED BY CONSENT THAT

1. The Applicant shall cause there to be a payment to the Respondent in the amount of $100,000 within 90 days from the date of Orders (“the payment”).

2. Contemporaneously with the payment, the Applicant transfer to the Respondent, at the expense of the Applicant all of his right title and interest in the real property situated at B Street, C Town, Victoria (“the C Town Shop”) and the Respondent shall indemnify the Applicant against all apportionable rates, and outgoings of or with respect to the real property of whatsoever nature or kind.

   (a)The Applicant shall at his expense be responsible for the conversion of the general law title for the C Town Shop to Torrens title land.

3. The Applicant retain Lot A, C Town Street, D Town Victoria more particularly described in Certificate of Title Volume … Folio … (“Lot A”).

4. The Applicant retain Lot E, C Town Street, D Town Victoria  more particularly described in Certificate of Title Volume … Folio … (“Lot E”).

5. In the event that the Applicant defaults on his obligations provided for in paragraphs 3 above, that the real property detailed in paragraph 5 above shall be sold altogether out of court on the following terms (“sale in default”):

   (a)By a licensed real estate agent as agreed between the parties or failing agreement then an agent as appointed by the President of the Real Estate Institute of Victoria (“REIV”);

   (b)At an agreed reserve price, or failing agreement at a price to be determined by the appointed real estate agent;

   (c)On an unconditional REIV contract of sale of thirty days duration pending settlement or as determined by the appointed estate agent as agreed between the parties;

   (d)The property may be sold by public auction on the recommendation of the estate agent with the agreement of the parties;

   (e)The parties shall do all such acts and things and sign all documents necessary to effect the sale including co-operating with any reasonable request of the estate agent including making keys available, allowing inspection of the real property at times requested by the estate agent and ensuring that the real property dwelling and grounds are in a neat and presentable condition at the time of inspection and auction;

   (f)The conduct of the conveyance as agreed between the parties, at the joint expense of the defaulting party.

6. The in respect of the default sales, upon completion of the sale, the proceeds of the sale be applied:

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

   (b)Second to discharge the mortgage and any other encumbrance affecting the real property;

   (c)Third so much of the payment that remains outstanding to the Respondent and interest at the rate of 7 per cent from the date of the default.

   (d)Fourth the balance to the Applicant.

7. Pending the completion of the C Town Shop transfer as provided above that:

   (a)The Respondent have the sole right to occupy the C Town Shop real property and during such right of occupation the Respondent be responsible for and make payment to all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of or with respect to the real property as they fall due;

   (b)The Husband have the sole right to occupy Lot A and Lot E real property and during such right of occupation the Applicant be responsible for and make payment to all instalment pursuant to the mortgage and all rates, taxes and like apportionable outgoing of or with respect to the real property as they fall due;

8. Liberty be reserved to either party to apply with respect to the terms and conditions of and execution of the any sale that may be required pursuant to these Orders.

9. On or before the time of the payment that the parties shall sign all documents necessary to sell the jointly owned shares in ANZ and HSK, with the proceeds to be equally shared.

10. 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 property (including choses-in-action) in the possession of such party as at the date of these orders save for the items referred to in Annexure A to these Orders, which the parties shall arrange to exchange on or before the time of the payment.

    (b)each party forego any claims they may have to any superannuation benefits, long service leave, sickness payments or other employment entitlements  belonging to or earned by the other.

    (c)money standing to the credit of the parties in any joint bank account is to be divided equally and the account then closed.

    (d)insurance policies remain the sole property of the owner named therein.

    (e)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.

    (f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

    (g)each party foregoes any claim they may have to any inheritances to which the other party is entitled to either presently or in the future.

IT IS FURTHER ORDERED THAT

1. All extant applications be dismissed and the matter removed from the list awaiting hearing.

AND THE COURT NOTES THAT

1. Pursuant to section 90ST of the Family Law Act 1975 that the parties intend that these orders shall as far as reasonably practicable finalise the financial relationship between the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kent & Sullivan 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 4078  of 2015

Mr Kent

Applicant

And

Ms Sullivan

Respondent

REASONS FOR JUDGMENT

1. In this matter, the application before the Court is an application for consent orders which was filed by the applicant de facto husband, in these reasons for convenience referred to as “the husband”, on 8 May 2015.  That matter was referred to this list as the husband and the respondent de facto wife, who will be referred to as “the wife”, separated, according to that application, in April 2012.

2. The husband and the wife commenced cohabitation in 1985 and it is submitted that, notwithstanding that they have both deposed to separation having occurred in April 2012, there was some dispute as to the date of separation. 

3. The parties are both retired and in receipt of social security benefits or pensions, and there is in this case a pool of assets of around $1,074,000.  That pool is made up of a retail property located at B Street C Town in the State of Victoria (“the C Town property”) and Lots A and F, C Town Street, D Town in the State of Victoria (“the D Town property”).  The D Town property is registered in the husband’s name alone, and the wife has a 25 per cent interest in the C Town property.  The husband deposes that he has various motor vehicles which he values at $107,000, and that he has a share in an aircraft and the value of his share is $65,000. 

4. The intent of the orders the parties seek to have made is that there will be a 50-50 split of their combined property.  It is submitted that there would be significant hardship to the wife if orders were not to be made, as she would be essentially left with 25 per cent of a retail property in C Town, and whatever other furniture, chattels and motor vehicles she may own.  It would also arguably be a hardship for these parties not to finalise their financial relationship, particularly in circumstances where they each have an interest in a particular property.

5. Section 44(5) of the Family Law Act1975 (Cth) provides that a party to a de facto relationship may apply for an order, pursuant to s90SM, for property settlement only if that application is made within the period of two years after the end of the de facto relationship, the “standard application period”. The Court may grant leave to apply after the end of the standard application period if the Court is satisfied that hardship would be caused to the party if leave were not granted.

6. I am satisfied that in this case there would be hardship to both the husband and wife if leave were not granted, and propose to grant leave.  I am also satisfied that after a relationship of some 27 years, and given the respective current positions of these parties, that the orders proposed, which give effect to a fifty-fifty, split are appropriate in all of the circumstances and are proper for the Court to make.  I am also satisfied that in circumstances where the parties seek orders, and having found that there would be hardship if leave were not granted to make the application for property settlement, that it is just and equitable to make orders for adjusting their interests in property.  I propose to make the orders as sought by the parties.

7. I also note that, although the wife did not appear today and there was no appearance on her behalf, her solicitors had forwarded a letter to the husband’s solicitors, confirming the wife’s consent to the orders.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 7 July 2015.

Associate: 

Date:  29 July 2015