LAICE & LONGKI

[2012] FamCA 526

FAMILY COURT OF AUSTRALIA

LAICE & LONGKI [2012] FamCA 526

FAMILY LAW – PROPERTY - consent orders - Registrar refuses to make orders because of absence of clean break - Severing of joint tenancy to create tenancy in common is a clean break.

Family Law Act 1975 (Cth)
Transfer of Land Act 1958 (Vic)

APPLICANT: Ms Laice

RESPONDENT: Mr Longki

FILE NUMBER: MLC 3565 of 2012

DATE DELIVERED: 26 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Van Dijk

SOLICITOR FOR THE APPLICANT: Clancy & Triado

THE RESPONDENT: No appearance

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 solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That the reasons this day be transcribed.

4. 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 by this Court under the pseudonym Laice & Longki 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 3565 of 2012

Ms Laice

Applicant

And

Mr Longki

Respondent

REASONS FOR JUDGMENT

1. This is a matter that was referred to me by the Registrar who declined to make orders by consent for two reasons.  The first was that she was not satisfied that there was a clean break between the parties by virtue of the orders and the other was that she could not be satisfied that it was a just and equitable outcome, having regard to the way the parties actually described the overall division.

2. I am therefore dealing with those two issues.  First, the clean break principle is complicated here because the parties own a property in which, by virtue of the proposed orders, the husband would become an owner with the wife as a tenant in common as to 10 per cent and the wife as to 90 per cent.  By virtue of the Transfer of Land Act 1958 (Vic), that would mean that each of the parties becomes a discrete owner as to those particular percentages. How the parties would enforce the sale of that property if they disagreed is a moot point and one that I do not have to deal with today but I have raised it. To that extent, the orders otherwise are a clean break between the parties. Section 81 is simply a directive to the Court to try and wherever possible, make a clean break as between the parties; the over-riding consideration still lies in s 79 of the Family Law Act 1975 (Cth) (“the Act”).

3. The second issue that the Registrar was concerned about was the percentages.  The parties have a fairly convoluted process of dividing their property and they have set out their calculations.  I must say that when I tried to do the mathematics, I too was a little confused but after a number of attempts, it can be seen that the way in which the document is actually pleaded is correct.  This is a division somewhere around the 60 per cent to the wife and 40 per cent to the husband which, having regard to the personal circumstances of the parties and the way in which their contributions are pleaded, is a just and equitable outcome.

4. The other concern which I raised was the question of the absence of the husband.  Not only the absence of the husband today but also the fact that he has not had a solicitor acting for him throughout these proceedings.  I am told and there is no reason for me to doubt, the husband is currently in China and he is going to live there permanently.  I am told that both parties are professional persons and therefore have an understanding of what they are doing.  In the form that was presented to the Registrar, seeking the consent orders, there is a document which says that the person is making a statement of truth.  That is quite distinct from evidence in the form of an affidavit.  What the statement of truth says is that everything in the application is true.

5. Importantly, what the husband in this case said was that he had had independent legal advice of his rights under the Family Law Act and of the effect and consequences of the orders being made in the terms that were proposed. In addition to that, he said that he had read and considered various sections of Part VIII of the Act. He does not say that he understood them but that he had read and considered them. I am comforted by the fact that he has had independent legal advice, even though all the issues that I have raised and the Registrar raised, are matters upon which he remains silent.

6. It seems to me, looking at the balance of the document, if the calculations I have done are right, it is a 60 per cent, 40 per cent division.  It is well within the range of probable outcomes and there is strong ring of commercial reality about it.  On that basis, I am satisfied that these orders are just and equitable, notwithstanding my reservation about whether the husband understood exactly the consequences of what he was doing.  Having regard to the fact that he is aware that the matter is listed today, that the Registrar had refused to make the orders and the fact that there are some concerns about the drafting and the proposed financial relationships between the parties in the future, I can be confident that he is not troubled about it and on that basis, I shall make the orders.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 June 2012.

Associate: 

Date:  11 July 2012