Lavery & Lavery

[2007] FamCA 30

FAMILY COURT OF AUSTRALIA

LAVERY & LAVERY [2007] FamCA 30

FAMILY LAW - PROPERTY – Defended property application resolved by the parties - Consent Orders approved.

Johnson v Johnson (2000) 201 CLR 488

APPLICANT: Mrs Lavery

RESPONDENT: Mr Lavery

FILE NUMBER: MLF 5342 of 2002

DATE DELIVERED: 2 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 2 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wraith

SOLICITOR FOR THE APPLICANT: McNab McNab & Starke

COUNSEL FOR THE RESPONDENT: Mr Ham

SOLICITOR FOR THE RESPONDENT: Maeve O'Brien & Associates

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5342  of 2002

Mrs Lavery

Applicant

And

Mr Lavery

Respondent

REASONS FOR JUDGMENT

1. This matter of comes before me in the Standard Track List of Defended Cases.  It is a property dispute.  The wife and the husband are 42 years of age and were married in February 1986. 

2. Their marriage fell upon unfortunate times by about 1998.  The parties attempted, I daresay in a most genuine way, to reconcile their differences.  That process lasted several years, but ultimately broke down and the wife was obliged to commence proceedings in September 2002.  A further reconciliation process took place.  That too broke down and finally an application to reinstate her original Application instituting proceedings was filed by the wife in November 2004.  I note that there are two children of the union, R who is 18 years of age and I who is 13. 

3. Mr Wraith appears for the applicant wife and Mr Ham for the respondent husband.  I have been advantaged with excellent affidavits drawn on behalf of each of the husband and the wife.  This morning I had the benefit of a discussion with both counsel and expressed a “preliminary view” in relation to certain matters.  At the request of the parties, the proceedings were stood down in order to negotiate in a sensible and dignified manner. 

4. I took the opportunity to address both the husband and the wife as to the advantages of a consensual adjustment under the umbrella of the provisions of the Family Law Act 1975 (as amended).  See for example Johnson v Johnson (2000) 201 CLR 488. However, as I pointed out to them, dialogue of that nature also should bring into account, matters such as dignity and respect. This, I believe, the parties have done.

5. I congratulate, the parties on having the strength of character and the will to arrive at this agreement and not have foisted upon them in a schoolmasterly way a court‑imposed order with a collateral judgment.  It takes a lot of determination and mutual goodwill to achieve a settlement of this nature and I do again offer my congratulations to both parties and the professional advisors in having the skill to achieve this sensible settlement. 

6. I am familiar with the assets and liabilities of the parties and the issues at large between them.  I understand the rationale behind the consent orders sought to be made.  It is, as Mr Wraith said, a “compromise”, and, as Mr Ham said, “a commercial, realistic and sensible” adjustment.  In my view the adjustment is and falls well within what the court would have ordered after two or three days of bitter contest.  It is a just and equitable settlement. 

7. I mark the minutes of consent orders Exhibit “A”.  I make orders in terms of Exhibit “A”.  The wife's solicitors to engross.  I note the removal from the Active Pending Cases List.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  2 February 2007

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