Martyn and Collins

[2017] FamCA 1054

FAMILY COURT OF AUSTRALIA

MARTYN & COLLINS [2017] FamCA 1054

FAMILY LAW – PRACTICE AND PROCEDURE – De facto relationship – application for property orders filed outside the standard application period – leave granted pursuant to s 44(6) of the Family Law Act 1975 (Cth) – final property orders.

Family Law Act 1975 (Cth) ss 44(5), 44(6)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Martyn

RESPONDENT: Mr Collins

FILE NUMBER: MLC 9786 of 2017

DATE DELIVERED: 9 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 9 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tiernan

SOLICITOR FOR THE APPLICANT: T J Mulvany & Co

COUNSEL FOR THE RESPONDENT: Ms Nadarajah

SOLICITOR FOR THE RESPONDENT: Knox Family Law Specialist Pty Ltd

Orders

BY THE COURT IT IS ORDERED

1. Pursuant to Section 44 (6) of the Family Law Act 1975 (Cth) the parties have leave to commence proceedings out of time.

2. The reasons for the Order referred to in paragraph 1 hereof be transcribed.

BY CONSENT IT IS ORDERED

1. That the Applicant shall pay to the Respondent the sum of FIFTY THOUSAND DOLLARS ($50,000) (“the payment”) within 30 days after the making of these Orders (“the date”).

2. Contemporaneously with the payment referred to in paragraph 1 hereof:-

   (a)The Respondent shall transfer all his right title and interest in the real property at B Street, Suburb C in the State of Victoria being the property more particularly described in Certificate of Title Volume … Folio … (“the real property”) at the expense of the Applicant.

   (b)That contemporaneously with the payment referred to in paragraph 1 hereof the Applicant will re-finance the D Bank mortgage secured on the real property into her sole name.

   (c)The Applicant will indemnify and keep indemnified the Respondent with respect to all outgoings on the real property including mortgage repayments.

3. That in default of the payment by the date the parties sign all documents and do all things necessary to sell the real property. The real property be sold as soon as possible out of court (``the sale'') and the proceeds of the sale be applied in the following order:

   (a)to pay all costs, commissions and expenses of the sale;

   (b)to discharge the mortgage and any other encumbrance affecting the           real property;

   (c)in payment of the sum of $50,000.00 together with the interest rate of      ten (10 per cent) per centum per annum adjusted monthly from the date to the Respondent;

   (d)the balance to the Applicant.

4. That pending the payment or completion of the sale:

   (a)the Applicant have the sole right to occupy the real property. During such right of occupation the Applicant pay all rates and taxes and like apportionable outgoings of the real property as they fall due;

   (b)the parties hold their respective interests in the real property upon trust pursuant to these orders;

   (c)neither party encumber the real property without the consent in writing the other party.

5. That liberty be reserved to either party to apply with respect to the terms and conditions of and execution of the sale.

6. Unless otherwise specified in these orders and except for the purposes of enforcing these or any subsequent orders:

   (a)Each party shall be solely entitled to exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these Orders (furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the Applicant).

   (b)Money standing to the credit of the parties in any joint bank account is to be equally divided between the parties.

   (c)Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.

   (d)All insurance policies shall become the sole property of the owner named thereon.

   (e)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

   (f)Any joint tenancy in any property is hereby expressly severed.

THE COURT NOTES that pursuant to Section 81 of the Family Law Act 1975 (Cth) the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Collins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9786 of 2017

Ms Martyn

Applicant

And

Mr Collins

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of Martyn & Collins comes before the Court today in a Judicial Duty List upon the application for consent orders filed by the applicant on 21 September 2017. That is an application for an alteration of property interests. The parties have signed a minute of consent order. The application is made out of time. Accordingly, the parties seek leave, pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”).

2. The background to the application is as follows. 

3. The applicant is Ms Martyn.  She is aged 29 years and is engaged in employment in retail. 

4. The respondent is Mr Collins.  He is aged 30 years and is engaged in employment as a tradesman. 

5. The parties commenced their co-habitation in 2010; separation occurred in July 2015.

6. Section 44(5) of the Act provides that a party to a de facto relationship may apply for orders under the Act for the alteration of property interests only if the application is made within a period of two years after the end of the de facto relationship. That is referred to as the standard application period.

7. The parties in this matter have filed their application approximately two months out of time.  The affidavit filed by Ms Martyn indicates that the parties were delayed in filing their application due to the need to obtain finance and also as a result of the parties’ work commitments which delayed the signing and lodgement of documents.  I accept that explanation for the delay in filing the application. 

8. Section 44(6) of the Act provides that the Court may grant the party leave to apply after the end of the standard application period if the Court is satisfied that hardship would be caused to the party or a child if leave is not granted. The Court is required to consider the reasons for any delay, which I have already noted, in making an application. The Court is also required to consider the prejudice to the other party on the basis of any prima facie case.

9. None of those matters are particularly relevant in circumstances where the parties seek orders by consent and seek the leave of the Court to have the orders made.  Hardship does not only mean financial hardship;  hardship may also be the fact that parties own properties together but they no longer live together and it is no longer appropriate that they own property together.  Again, that is a circumstance that presents itself in this matter.  The parties have a jointly owned property.  They will suffer significant hardship if they are unable to obtain orders of this Court severing that financial relationship.

10. Having regard to those circumstances, I am satisfied that it is appropriate that leave be granted to the parties to proceed with their application out of time. 

11. I have heard submissions as to the proposed consent orders.  The parties have shared a relationship of approximately five years and they have acquired a jointly owned property. 

12. The proposed adjustment between them results in the applicant retaining the jointly owned property and requires her to effect a payment to the respondent.  The effect of those orders will be a division which will result in the applicant receiving slightly more than 50 per cent of the jointly owned pool. 

13. It was submitted that a commercial decision has been taken by the parties to seek such an adjustment in circumstances where there is a limit to the amount the applicant can borrow and, in the event that they are not able to achieve a settlement in this fashion, that will result in a sale of the jointly owned property and likely a financial loss for both parties.  Having regard to that background, I am satisfied that the proposed orders are just and equitable.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 November 2017.

Associate: 

Date:  9 November 2017