Lenart and Lenart

[2011] FamCA 460

FAMILY COURT OF AUSTRALIA

LENART & LENART [2011] FamCA 460

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Struck out

Family Law Act 1975 (Cth)

APPLICANT: Mr Lenart

RESPONDENT: Ms Lenart

FILE NUMBER: MLC 742 of 2011

DATE DELIVERED: 22 March 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 22 March 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the application filed on 31 January 2011 is struck out.

2. That the reasons be transcribed and placed on the file.

3. That all proceedings be removed from the list of cases awaiting a hearing.

IT IS NOTED that publication of this judgment under the pseudonym Lenart & Lenart is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 742 of 2011

Mr Lenart

Applicant

And

Ms Lenart

Respondent

REASONS FOR JUDGMENT

1. On 31 January 2011 Mr and Ms Lenart filed an application for consent orders.  Each of them concedes today that they prepared the document themselves albeit that the prime mover was probably Ms Lenart.  The affidavit of both of them attached to the consent application sets out that they understood their rights in respect of obtaining independent legal advice, that each has not had that independent legal advice although Mr Lenart says that his best man was a lawyer.  Both of them came before the Court today indicating that they thought it was necessary for them to take this step before they obtain a divorce.  I have disavowed them of that position.

2. The matter was originally before Registrar Rose on 25 February 2011 and transferred to the duty list on the basis that the Registrar was not prepared to make the order under section 79(2) of the Family Law Act 1975 (Cth) (“the Act”). In discussions with both parties today it is clear that there is an equity of about $638,000 in just the two properties. There is also superannuation. The income differential is large with Ms Lenart earning about $62,000 a year and Mr Lenart on a disability pension of about $20,000 per year. There are two of the three children of their relationship still under the age of 18 years and they are supported largely by Ms Lenart because Mr Lenart is only able to pay the nominal child support from his pension.

3. The unusual facts of this case are that the parties had a relationship of some 22 years of which only a modest portion was time together.  During that initial period of time, they purchased the matrimonial home after living with the mother of Ms Lenart for a number of years.  They were only apparently able to acquire the property by virtue of a $60,000 gift by the mother.  The balance was obtained by a mortgage which has been largely paid off by Ms Lenart.  She has also had the use and occupation of the property. 

4. The percentage division in this case is clearly overwhelmingly in favour of Ms Lenart and I have indicated that I am not at all comfortable about making an order in those terms for two reasons. The first is that the facts upon which the calculations have been done are vague. The two properties have been valued according to rate notices and there is some uncertainty about the accuracy of the information. The second reason is that neither party has had legal advice. Section 79(2) of the Act says that a court shall not make an order under section 79 unless the Court is satisfied that it is just and equitable to do so. Based on the evidence I could not be satisfied that it is a just and equitable settlement for both parties.

5. Both parties agree that the reason they are here today is because they thought that they had to complete this for the divorce.  Under those circumstances each is content for me to strike out the application and they will then proceed with the divorce.  I can again only urge them to obtain legal advice about their rights. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 March 2011.

Associate: 

Date:  15 June 2011