Masterton & Casey

[2007] FamCA 108

FAMILY COURT OF AUSTRALIA

MASTERTON & CASEY [2007] FamCA 108

FAMILY LAW – PROPERTY – Family Law Act 1975 (Cth) s 79(2) – Just and equitable property orders

Family Law Act 1975 (Cth)

APPLICANT: MS MASTERTON

RESPONDENT: MR CASEY

FILE NUMBER: MLF 459 of 2006

DATE DELIVERED: 8 FEBRUARY 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 8 FEBRUARY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS TEISHER

SOLICITOR FOR THE APPLICANT: ROSE MARY BRONDOLINO & CO

COUNSEL FOR THE RESPONDENT: MR ROBINSON

SOLICITOR FOR THE RESPONDENT: NANSCAWEN LAWYERS

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 459 of 2006

MS MASTERTON

Applicant

and

MR CASEY

Respondent

REASONS FOR JUDGMENT

1. The matter of Casey and Masterton has resolved and final property orders are presented to the court.  Mr Robinson of counsel appeared for the wife and Ms Teicher of counsel appeared for the husband.  Both parties were at court all of yesterday and I am advised that this matter concluded at about 5 pm.  On the basis that the minutes were fully explained to, and then signed by, each of the clients, I excused them from attendance at court this day.  Likewise, if all matters were finalised and there was no issue whatsoever, I indicated that only one counsel need attend at court this morning.  Accordingly, Mr Robinson has attended at court and Ms Teicher is excused.

2. The orders before the court deal with all property and financial issues.  To the extent that the documents provided initially that there was to be a spousal maintenance claim, that was not an issue before the court when the extant matters were summarised for hearing.  It was agreed between the parties that that was not to be determined as a separate order, and clearly, and to the extent required by section 79(4) or section 75(2) of the Family Law Act 1975, those financial issues form part of the wider consolidation of financial issues which have led to this settlement.

3. I have previously read the affidavit material including the financial statements.  I was fully aware of all of the competing financial claims and arguments of contribution and each of the 75(2) factors as were pleaded to be relevant.  Throughout yesterday there were a number of discussions in the presence of the parties and in open court as to competing financial issues and ultimately the matter resolved by the commonsense of the parties and the assistance of learned counsel and instructing solicitors. 

4. There were one or two matters that were raised with the court and a preliminary opinion delivered and that has assisted the final conclusion of issues, though I note the inability of the parties to agree upon a solicitor to handle the conveyance of the former matrimonial home, and failing agreement that is to be left to the president of the Law Institute of Victoria. 

5. The one matter upon which I specifically wish to direct attention is the outstanding goods and services tax debt to the Deputy Commission of Taxation plus interest and other charges thereon.  In round figures that debt is $80,000.  There is to be, by agreement, an investigation of the validity and independence of that current debt, and if confirmed by Mr F, an accountant previously engaged by the parties for the purposes of this hearing on other matters, then it is to be paid.  That has been provided for in the financial settlement and the way in which the parties have balanced assets. 

6. I touch on this matter primarily because paragraph 7 reserves liberty to apply on this and only this issue.  There is no issue if the debt is to be paid in the sum provided for or any lesser sum.  I am uncertain of the outcome if the debt continues to increase or is found to be greater, though that is highly unlikely given the documentation from the Australian Taxation Office.  However, for the purposes of this brief extempore judgment, I highlight that it is never intended to reopen the property case or financial issues and this is a discrete issue limited in context and hopefully dollar value.

7. Otherwise, I am fully aware of the pool of assets and liabilities.  There was agreement on the value of the matrimonial home and of superannuation.  The parties are retaining their superannuation.  The adjustment of the assets was explained to me and I do understand the context of the orders and the manner of disposition of the proceeds of sale of the home.  I regard that as appropriate. 

8. For the purposes of section 79(2) of the Act, I declare that these orders are just and equitable and bring about a proper and fair resolution of financial issues as between the husband and wife. I will have these brief reasons transcribed and placed on the file and made available to the parties.

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

………………………………………………………..
Associate: 
Date: 28 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MASTERTON & CASEY