Martyn and Collins

In the matter of *Martyn and Collins*, Johns J granted the parties leave to commence proceedings out of time pursuant to section 44(6) of the *Family Law Act 1975* (Cth). The court was required to determine the terms of a consent order that would finally determine the financial relationship between the parties, as far as practicable, and avoid further proceedings.

The court's reasoning and the legal principles applied are reflected in the consent orders made. These orders provided for the applicant to pay the respondent $50,000 within 30 days. Contemporaneously with this payment, the respondent was to transfer his interest in a property at B Street, Suburb C, Victoria, to the applicant at her expense. The applicant was also to refinance the mortgage on this property into her sole name and indemnify the respondent against all outgoings, including mortgage repayments.

In the event of default in payment, the parties were to sign all necessary documents to sell the property. The proceeds of sale were to be applied first to sale costs, then to discharge any mortgage or encumbrance, followed by payment of the $50,000 plus 10% per annum interest to the respondent, with any balance to the applicant. Pending payment or sale, the applicant was granted sole occupation of the property, responsible for all rates and taxes. Both parties were to hold their interests in the property on trust as per the orders, and neither could encumber it without the other's written consent. The orders also stipulated the parties' entitlements to other property, bank accounts, superannuation, insurance policies, and liabilities, with the intention of finally determining their financial relationship.