Massey and Massey

[2008] FamCA 6

FAMILY COURT OF AUSTRALIA

MASSEY & MASSEY [2008] FamCA 6

FAMILY LAW – Amendment to consent orders by consent

Family Law Act 1975 (Cth)

APPLICANT: MRS MASSEY

RESPONDENT: MR MASSEY

INTERVENOR: THE DEPUTY COMMISSIONER OF TAXATION

FILE NUMBER: MLF 2141 of 2005

DATE DELIVERED: 11 JANUARY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 11 JANUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT: MR CRABTREE  (AS AGENT FOR GARDEN & GREEN)

COUNSEL FOR THE RESPONDENT: MS DRUCE

SOLICITOR FOR THE RESPONDENT: PEARSONS SCHETZER & ASSOCIATES

COUNSEL FOR THE INTERVENOR: NO APPEARANCE

SOLICITOR FOR THE INTERVENOR:

ORDERS

1. THAT the following Orders made 30th November 2007 be varied to provide that all payments expressed as payable to the wife be expressed as payable to the Solicitors for the wife namely Garden & Green Lawyers and Consultants … - 3(d), 9(d), 11(c), 12(b), 13, 15(c) and 17.

2. THAT in the event of any dispute as to the reasonable costs and disbursements incurred by the wife with Garden & Green then a sum of not more than $75,000.00 only be deposited by Garden & Green from monies provided to them under Order 1 above in an interest bearing account in the name of the wife and Garden & Green pending agreement or further Order.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

4. THAT the wife’s solicitors forthwith serve a sealed copy of these Orders upon the wife.

IT IS NOTED:

A.THAT both the draft of the proposed consent orders and the final copy handed to me in Court this day and signed by the wife and respective solicitors be marked as exhibit “1” and remain upon the Court file.

B.THAT the affidavit of Mr Bainbridge sworn 9 January 2008 and its exhibit be marked as exhibit “2” and remain upon the Court file and (for the purposes of the court index) be marked as document 72)

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as Massey & Massey & ATO

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2141 of 2005

MRS MASSEY

Applicant

And

MR MASSEY

Respondent

And

THE DEPUTY COMMISSIONER OF TAXATION
Intervenor

REASONS FOR JUDGMENT

1. In the matter of Massey, I have previously heard a defended case and given reasons for judgment and pronounced orders on 30 November 2007.  On a procedural matter, the solicitor for the wife requested a mention; and earlier this week he appeared before me together with Mr Shetzer, solicitor, appearing for the husband.  There was then no appearance by the Deputy Commissioner of Taxation, who was an intervenor in the original proceedings.

2. In the substantial orders that I had earlier pronounced on 30 November 2007, I had required moneys to be paid by the husband to the wife.  In particular, paragraphs 3(d), 9(d), 11(c), 12(b), 13, 15(c) and 17 were identified. 

3. The request of the wife's solicitors, Garden and Green, lawyers, was for an appropriate amendment so that moneys were paid to them so that they could meet their costs and disbursements paid on her behalf and for the balance, or such sum as is then agreed, to be paid to the wife.  At that stage I indicated to Mr Bainbridge that I would either require the signature of the wife, the consent of the wife or the presence of the wife at court prior to making orders which varied the earlier orders made by myself.

4. I now have an affidavit before me from Mr Bainbridge with an annexure which is yet to be filed, as it is not strictly in accordance with the requirement of the Family Law Rules.  In any event that affidavit sets out the financial history of the matter, the decision of his firm to fund the wife, and a general summary of the current level of expenses and disbursements owing.  Otherwise, that affidavit then touches on issues concerning the husband and his potential default, but I wholly disregard those matters.

5. Set out in paragraphs 17-22 of the document, the husband is not yet in default and has sufficient time to organise his own financial affairs and the sale of property or plant and equipment as required by the orders.  I make no comment or take no action on those matters of speculation.  Otherwise, the orders before me require a substitution of the firm Garden and Green for the wife in various subparagraphs.  They were emailed to me yesterday.  This morning Mr Crabtree, solicitor, appears representing the firm Garden and Green, the wife appears in person and Ms Druce, solicitor, represents the husband.  I do not necessarily require an appearance for or on behalf of the Deputy Commissioner of Taxation.

6. I have had minutes presented.  The first draft of the minutes has various amendments thereto, presumably in the handwriting of the wife.  Those amendments are clear, in that the quantum of moneys to be held if there be a dispute be limited to not more than 75,000, and the moneys initially to be held in a joint account of the wife and her current solicitors pending agreement or order of the court. 

7. Given the orders are by consent and they are properly documented and there is a clear basis for the making of the orders as annexed to Mr Bainbridge's affidavit is a copy of the original letter of instructions and engagement of his firm, dated 7 April 2004 and then signed by the wife.  What I will do, given that I am satisfied that there has been proper disclosure to all relevant parties and there is clearly an understanding and indeed negotiated orders before me, I will amend the orders by way of the pronouncement of further orders in the form agreed on by all parties and on a consent basis. 

8. I will pronounce those orders in court this day, and because of the wife's attendance here today I do not require any other formal service upon her.  The orders will be identical to the orders signed and now before the court.  I will have these brief reasons transcribed and placed on the court file together with the amended order.  I will have the orders sent to the wife's solicitors.  As I understand they remain her solicitors on the record but they will need to forward immediately a sealed copy to her for her record.

9. In the matter of Massey, the orders will not be made in chambers but made today in court.

10. Both the draft of the proposed consent orders and the final copy handed to me in court this day and signed by the wife and respective solicitors be marked as exhibit 1 and remain upon the court file.

11. The affidavit of Mr Bainbridge, sworn 9 January 2008 and its exhibit be marked as exhibit 2 and remain upon the court file (and for the purposes of the court index, be marked as document number 72.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: