KING & FALKINGHAM

[2013] FamCA 1123

FAMILY COURT OF AUSTRALIA

KING & FALKINGHAM [2013] FamCA 1123

FAMILY LAW – CHILDREN – Orders by consent – best interests

FAMILY LAW – PROPERTY – Orders by consent – just and equitable.

Family Law Act 1975 (Cth)

APPLICANT: Ms King

RESPONDENT: Mr Falkingham

FILE NUMBER: MLC 10114 of 2011

DATE DELIVERED: 26 November 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 26 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Salamanca

SOLICITOR FOR THE APPLICANT: Meerkin & Apel

COUNSEL FOR THE RESPONDENT: Mr G Thompson

SOLICITOR FOR THE RESPONDENT: Susan Snyder

IT IS NOTED that publication of this judgment by this Court under the pseudonym King & Falkingham 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 10114 of 2011

Ms King

Applicant

And

Mr Falkingham

Respondent

REASONS

1. The matter was listed for final hearing before me commencing 25 November 2013.  It involved both parenting and financial issues.  In anticipation of the hearing, the parties attended upon a family consultant for the preparation of a family report.  The family consultant was very positive and I think I commented at the beginning of the case that it is not common to see such positive comments about parents in these reports.

2. The report was very positive about the way in which the parties had handled their separation and focused on the needs of their children in the context of that separation, albeit that difficulties had arisen recently when the father had formed a new relationship.  I did comment at the commencement of the hearing on the possible negative impact of a contested hearing upon the parties and their ability to parent cooperatively in the future.

3. Although the parties did attempt initially to resolve all matters, my concerns were somewhat borne out by the fact that not only were they unable to resolve the financial issues, but they were also unable to resolve the parenting issues initially, notwithstanding that they both appeared to be accepting of the recommendations by the family consultant.  The parties not having settled, there were a number of preliminary issues that required determination before the commencement of the hearing proper, which were the subject of significant contest. 

4. We do have an adversarial system and whilst such contest is of course a legitimate part of that process, the positions sometimes taken by parties in relation to proceedings and the issues in the case tended to highlight my concerns about the impact these proceedings might have upon the parties and indirectly their children.  To their credit, those preliminary matters having been determined, the parties continued their negotiations and have ultimately resolved all matters.

5. The orders with respect to the children provide for the husband to spend time with the children as agreed.  I would, in some circumstances, have reservations about an order being made in such general terms.  However, I am satisfied in this case given the history of the matter and the parties’ ability to consult and to make arrangements that are in their children’s best interests that these orders are in the children’s best interests and I will make those orders by consent.

6. The issues with respect to property settlement included a dispute between the respective expert witnesses as to the value of the husband’s business, a dispute as to whether moneys provided by the wife’s sister were a gift or a loan, and what the wife said was the husband’s failure to meet his obligation to provide full and frank disclosure in a timely manner.  There was also a dispute late in the piece as to the valuation of the former matrimonial home, which the wife proposes to retain. 

7. Whilst the parties may not be in agreement in relation to each of these issues, they have and are to be commended for having taken a commonsense approach to the resolution of this matter.  As I had observed at the commencement of the hearing, it is not always the case and, in fact, commonly not the case that one party succeeds in relation to all issues.  An agreement generally requires some compromise by both parties.  It is not always easy to compromise and, having done so, it is important to draw a line in the sand and essentially move on.

8. Although the outcome may not be exactly what each of the parties hoped for, it has the benefit of certainty and finality.  Both parties have been represented by experienced counsel and instructing solicitors, who I similarly commend for assisting their clients to reach an agreement. 

9. The parties are no longer living in a marital relationship.  They no longer have the common use of the property they own. The assumptions that underpinned the arrangements they made with respect to their property have been brought to an end by the severance of their relationship.  Those arrangements they made during that relationship, which were appropriate at the time, are no longer appropriate and it is, in all of the circumstances, just and equitable that the Court make orders for property settlement.

10. Section 81 requires me, as far as is practicable to do so, to bring to an end the financial relationships between the parties.  I am satisfied that the proposed orders in this case do so, although I am proposing to make partial orders awaiting evidence that the trustee of the wife’s superannuation fund has been provided with procedural fairness in relation to the proposed superannuation split.

11. I have read the affidavits relied upon by the parties and on the basis of that evidence and the submissions made by their respective counsel in support of these orders, I am satisfied that in all of the circumstances of this case the proposed orders for property settlement are just and equitable and I will make the orders in terms of the minutes. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 26 November 2013.

Associate: 

Date:   22 May 2014