McDonald and Lydell

[2008] FamCA 156

FAMILY COURT OF AUSTRALIA

MCDONALD & LYDELL [2008] FamCA 156

FAMILY LAW – PROPERTY SETTLEMENT – Bitterly contested s 79A proceedings brought by wife against Executors of her late husband’s Estate – Matter proceeded to a Judicial Settlement Conference and was adjusted – Consent Orders made.

Family Law Act (1975) (Cth) (as amended)

APPLICANT: Ms McDonald

RESPONDENTS: Mr and Mrs Lydell

FILE NUMBER: MLF 7133 of 1999

DATE DELIVERED: 18 February 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 18 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Melilli

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENTS: Mr O'Shannessy

SOLICITOR FOR THE RESPONDENTS: Camerons Lawyers

Orders

1. That on or before 15 March 2008, the Respondents pay to the Applicant the sum of $225,000.00.

2. That all interim orders and directions, including as to costs, be discharged.

3. That all extant applications and responses be dismissed and the proceedings be removed from the List of Cases awaiting hearing.

4. That the Respondents pay the costs of valuation of the property at T.

5. That the costs of all further unpaid real property valuations of G Property Services and R Surveying & Valuations and the costs of Mr D, P Forensics be paid as to 50% by the Wife and 50% by the Respondents.

6. Certify for counsel.

IT IS NOTED that publication of this judgment under the pseudonym McDonald & Lydell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 7133 of 1999

Ms McDonald

Applicant

And

Mr and Mrs Lydell

Respondents

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of defended cases.  It was called over on 4 December 2007 and placed in my docket listing as a trial commencing on 18 February 2008.  Late last week at a mention hearing with Mr O'Shannessy who appears for the respondents, and the solicitor for the applicant, it was debated whether or not the matter was in a position to proceed on the date fixed for trial given that the single expert's report was not ready.  However, following submissions, it was considered appropriate that this day be not lost to the parties and that they consent to a Judicial Settlement Conference in a genuine arms-length endeavour to adjust the outstanding issues.  Mr Melilli now appears for the applicant this day.

2. The Judicial Settlement Conference commenced on that basis very much at arms-length throughout the whole of this day. 

3. The background to the proceedings is that the husband, who is now deceased, was born in February 1948.  The wife was born in November 1948.  They married in January 1971 and following a long marriage separated on 7 December 1997.  Theirs was a union in excess of a quarter of a century during which they had a child, who was born in October 1981. 

4. Shortly after separation the wife commenced a relationship with a Mr W which maintains to this day and it is thus clear that it remains a solid and loving one.  The husband was, following separation, diagnosed with cancer and which remained the position during the course of the parties' endeavour to negotiate and adjust their financial differences.  During that period he underwent two major operations.  Unfortunately, the parties finalised their financial arrangements with court orders made on 5 June 2001.  The husband subsequently passed away on 28 May 2003. 

5. Some five years following the court orders that were entered into the record upon the presentation of Form 17A documents, the wife commenced proceedings pursuant to section 79A of the Family Law Act (1975) (as amended).  The Estate of the husband was represented by Mr Lydell as respondent and Executor.  Mr Lydell has been present at all times during the negotiations this day as has the husband's sister, both of whom clearly have full knowledge of the factual matrix underpinning the financial issues between the parties.

6. I need only say that the parties were locked in bitter confrontation as to the various allegations made by the wife which were denied by the Estate, with counter allegations equally denied by her.  I had the advantage of reading two excellent Case Outline Documents prepared on behalf of each of the parties which clearly assessed and synthesised into short form the case enunciated by the wife and the response of the respondents.  I had sufficient familiarity of all the issues to discuss the matter and the potential basis for an adjustment with the parties and their professional representatives in the course of the Judicial Settlement Conference.

7. The opening position put by each of the parties demonstrated their respective polarised positions which were so disparate that one could not, initially at least, conceive the possibility of an adjustment.  Indeed, the primary position as taken by each of them was directly referrable to the manner in which their respective cases were put in their Case Outline Documents.  The parties however softened with the passage of the day as each party evidenced a genuine desire to adjust their respective positions and move forward.  At some length I went through the various issues with each of the parties and the judicial process that followed together with the potential litigation avenue down which they were to travel from this day in the event the matter did not settle. 

8. They have each expended considerable sums of money thus far, and it took great strength on their part to be able to resolve the issues this day.  In the result, their resolution is one that is predicated upon a commercial solution and a practical compromise.  Each of the parties, by no measure, ends with what they each sought to achieve, but they have reached an adjustment and may now depart the court.  They have the opportunity to revert to and get on with their respective lives.

9. I consider this settlement to be an excellent one.  It has every hallmark of a just and equitable arrangement arising from the extremely difficult set of circumstances so bitterly contested between the parties.  It is a recognition by each of them of the advantages of an adjustment and, significantly in my view, shows great respect for the settlement process that was embraced by them.  I have already congratulated the parties on this arrangement.  I see it as extremely wise in the circumstances and I propose to make the orders sought.

10. I mark the Minute of Consent Orders Exhibit “A”.  I make orders in terms of Exhibit “A”.  I direct the solicitors for the applicant wife to engross the orders.  I note the removal of the proceedings from the Active Pending Cases List.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  13 March 2008