Land and Chew

[2007] FamCA 686

FAMILY COURT OF AUSTRALIA

LAND & CHEW [2007] FamCA 686

FAMILY LAW - PROPERTY - Consent orders

Family Law Act 1975 (Cth)

APPLICANT: MR LAND

RESPONDENT: MS CHEW

FILE NUMBER: MLC 607 of 2007

DATE DELIVERED: 28 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S. Winspear

SOLICITOR FOR THE APPLICANT: Moores Legal

COUNSEL FOR THE RESPONDENT: Letter received from Solicitor

SOLICITOR FOR THE RESPONDENT: Digala & Associates

Orders

1. I make orders in terms of the minute which I will mark exhibit A.

2. I order that the minute marked A remain on the court file.

3. I will mark as exhibit B the letter from Digala and Associates on behalf of the wife, and I will order that remain on the court file.

4. I order a transcript of the discussion between Mr Winspear and I, and my reasons for judgment this day.  They are to remain on the court file.

5. I finally order that the minute be engrossed by the solicitor for the husband within seven days and emailed to my associate.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 602  of 2007

MR LAND

Applicant

And

MS CHEW

Respondent

REASONS FOR JUDGMENT

1. This is a marriage and relationship of some 21 years with three children, the youngest of whom is now about to turn 18 years of age.  It is a most unusual situation given that the parties separated 10 years ago, at which time they seemed to have some assets that they could have divided but did not, and now 10 years later the disparity between their respective financial positions is stark to say the least.  I am told that the wife has a pool of assets conservatively something in the vicinity of a million dollars and the husband effectively nothing, but that each of them has arguments about what the entitlement of the other is.

2. The sad fact of life is that it was the husband who stirred the issue by making the application and it might otherwise have just died a natural death.  The parties are now divorced so by making these orders I am effectively closing the gate on any further proceedings as to property settlement and probably spousal maintenance as well.   I am told that the major arguments as to why the wife could possibly justify a greater entitlement than the husband is that post‑separation she has not only built up the assets but also looked after the children.  There may be also a wastage-type argument in respect of the husband's gambling. 

3. Notwithstanding that the husband acknowledges that it is a terrible settlement in his favour, he has taken a commercial reality pragmatic sort of approach by entering into this arrangement. He could possibly have simply withdrawn his application and he may have closed the door anyway by virtue of the parties being divorced, but he has chosen to put before the Court an order which is based on s 79 of the Family Law Act1975 (Cth) (“the Act”). Before I can make an order under s 79 even though the parties may consent to it, I have to be satisfied that it is just and equitable in the circumstances. It is sometimes hard to make such a finding in circumstances where somebody has got nothing and the other party has got a million dollars, but I am told having regard to the arguments that would have been conducted about post-separation contribution and wastage in particular, and the pragmatic commercial approach that each party is now taking, that it is just and equitable in the circumstances.

4. I am also fortified by the fact that as is often said, a court can make orders in relation to the division of property, and parties can go outside the court door and do something entirely different which is what they appear to have done in this case. I propose to order that this brief transcript of my reasons be placed on the Court file for the purposes of anybody deciding to rethink their position under s 79A of the Act in the future. I will also order that a transcript of the discussion with Mr Winspear on behalf of the husband be placed on the Court file as well.

5. Accordingly, in the circumstances I am prepared to say that these are orders which are just and equitable in all of the circumstances. 

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

Associate: 

Date:  11 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as LAND & CHEW