Mariani and Mariani

[2011] FamCA 1094

FAMILY COURT OF AUSTRALIA

MARIANI & MARIANI [2011] FamCA 1094

FAMILY LAW – Consent orders where Australian Taxation Office notified beforehand of likely order.

Family Law Act 1975 (Cth)

APPLICANT: Ms Mariani

RESPONDENT: Mr Mariani

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5568 of 2011

DATE DELIVERED: 23 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Myers

SOLICITOR FOR THE APPLICANT: Richard Calley Family Lawyers

COUNSEL FOR THE RESPONDENT: Nr Adshead

SOLICITOR FOR THE RESPONDENT: Stephen Farmer & Associates

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

3. That B Pty Ltd and C Pty Ltd are joined as parties to these proceedings.

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 CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mariani & Mariani 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 5568 of 2011

Ms Mariani

Applicant

And

Mr Mariani

Respondent

REASONS FOR JUDGMENT

1. This is a matter that I heard earlier in the year and it had to be adjourned for a variety of reasons that are not relevant.  The parties, in the meantime, have come to an agreement which is embodied in the orders that I propose to make.  Those orders include obligations that impact upon two corporate entities which are effectively under the control of both of the parties.  Obviously I have no power to make orders against the companies without them being parties, and for that purpose it is agreed between everybody that those two corporate entities will be joined.

2. The reason the matter has not been able to be finalised until today was that I expressed public concern about the taxation implications of what was occurring, and to that end I requested that the practitioners notify the Australian Taxation Office that the parties had reached agreement and I was to be asked to make orders.  I had some reservations about what I was being asked to do, having regard to the evidence that I heard earlier in the year.  I have marked on the file an exhibit which is a letter emailed by the Australian Taxation Office to this Court at five minutes past 7 last night which unfortunately is not much short of gobbledygook.

3. But it seems that the person who wrote the email has some office of seniority within the Australian Taxation Office and was aware that the Court was going to make orders.  It seems to me my function when I have these concerns is to the let the Taxation Office know as a matter of fairness and natural justice.  The Taxation Office has made it plain that they think any orders I make will not have any impact upon the “taxation laws”, even if it may have some impact on the taxation the Australian people might be entitled to receive. 

4. I put these reasons on the record because if the Australian Taxation Office has some complaint about the orders, it may have problems under section 79A of the Family Law Act to set these orders aside, they having been given sufficient notice. Accordingly, I am satisfied that these orders, after what I have heard and read, are just and equitable as between the parties and also the two corporate entities to which I have referred.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 November 2012.

Associate:

Date:  12 December 2012