McDougal and Edwards

[2017] FamCA 355

FAMILY COURT OF AUSTRALIA

MCDOUGAL & EDWARDS [2017] FamCA 355

FAMILY LAW – PROPERTY – de facto relationship – where the application for consent orders has been filed outside the standard application period – where leave is granted to the applicant to file the application out of time – final property orders made – just and equitable

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

APPLICANT: Ms McDougal

RESPONDENT: Mr Edwards

FILE NUMBER: DGC 323 of 2017

DATE DELIVERED: 2 May 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 2 May 2017

REPRESENTATION

SOLICITOR APPEARING FOR THE

APPLICANT:

Ms Becker

SOLICITOR FOR THE APPLICANT: Ryan Carlisle Thomas

SOLICITOR APPEARING FOR THE

RESPONDENT:

Ms Shanahan

SOLICITOR FOR THE RESPONDENT: Christine J Shanahan & Associates

Orders

1. That pursuant to Section 44(6) of the Family Law Act 1975 the parties have leave to seek orders outside the standard application period.

BY CONSENT IT IS ORDERED

1. That the Respondent pay to the Applicant the sum of $80,000  (“the payment”) within 90 days from the date of these Orders (“the date”).

2. That contemporaneously with the Respondent’s  compliance with paragraph 1  of these Orders the Applicant do all such acts and sign all such documents as may be required to transfer to the Respondent at the expense of the Respondent all of her  right title and interest in the property interest in the real property known as B Street, Suburb C  being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the real property”), subject to any encumbrances.

3. That in the event that the Respondent fails, omits or neglects to comply with paragraph 1 of these Orders, the parties do all acts and things and sign all documents necessary so as to effect a sale of the real property for the best price reasonably obtainable in the following manner:-

   (a)List the real property for sale by private treaty with such agent as the parties may agree to appoint and in default of agreement as to agent within fourteen (14) days with such agent as the President of the Real Estate Institute of (state or territory) will appoint (“the agent”) the costs of an incidental to such appointment to be borne equally by the parties as and when same fall due;

   (b)The sale price at which the real property is listed be mutually agreed upon by the parties or, in the absence of agreement reached within fourteen (14) days of the date of these Orders be the price nominated as the fair market value by a valuer appointed by the President for the time being of the (state or territory) Division of Australian Institute of Valuers and Land Administrators (Incorporated) (“the valuer”) the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when they fall due;

   (c)The valuer will, if requested by either party at a date three calendar months after the date upon which the Real Property is first listed pursuant to paragraph 3 a. of these Orders and thereafter at three (3) calendar monthly intervals until the real property is sold, nominate a sale price other than the originally nominated sale price;

   (d)The parties each co-operate in every way with the agent including (without limiting the generality of the foregoing):

   (e)Making the key available to the agent;

   (f)Allowing inspection of the real property at all reasonable times requested by the agent;

   (g)Ensuring the real property including the grounds are in a neat clean condition at the time of inspection by the agent and prospective purchasers

   (h)Signing all documents requested by the agents in relating to the listing for sale of the real property except a contract or agreement of sale which has not been authorised by the parties’ solicitors.

   (i)The parties each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price agreed upon by the parties or, in the absence of any agreement, at or above the price nominated by the valuer pursuant to paragraphs b. and c.

4. That pending the payment or completion of the sale

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

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

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

5. That the Respondent retain for his sole use and benefit:

   (a)His 4WD;

   (b)His Boat;

   (c)Any funds in bank accounts in his sole name;

   (d)His Superannuation with First State Super; and

   (e)His Superannuation with Bendigo SmartStart Super.

6. That the Applicant retain for her sole use and benefit:

   (a)Her Motor vehicle;

   (b)Any funds in bank accounts in her sole name; and

   (c)Her superannuation with BT Super.

7. The Respondent be liable for and indemnify the Applicant against all payments in respect of his Commonwealth Bank Visa Credit Card.

8. All extant applications be dismissed.

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 McDougal & Edwards 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: DGC 323 of 2017

Ms McDougal

Applicant

And

Mr Edwards

Respondent

REASONS FOR JUDGMENT

1. The matter of McDougal & Edwards comes before me today in a Judicial Duty List upon the filing of an application for consent orders by the applicant on 3 February 2017.  The parties today seek that leave be granted to them to make an application for consent orders outside the standard application period and further, they ask the Court to make final orders that will resolve the outstanding property issues between them. 

2. The application for consent orders is supported by a statement of agreed facts which was provided to the Court today and is marked as Exhibit A1 on the Court file.  That statement of agreed facts helpfully sets out the circumstances of the parties as to firstly, the delay in bringing the proceedings and secondly, as to the hardship that would be caused if the Court were to refuse the application for leave.

3. The explanation for the delay, essentially, is that the parties have been engaged in protracted negotiations for some months now.  The application for consent orders is approximately six months out of time, hence, it is not a significant delay in the filing of the application. 

4. As to the issue of hardship, the position is that there is a jointly owned property and if leave is refused, there would be hardship to both parties in not being able to adjust their financial interests with respect to that and their other property.

5. Section 44(5) of the Family Law Act 1975 (Cth) (“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 the period of two years after the end of the de facto relationship. That is what is referred to as the standard application period.

6. 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 were not granted. That is the circumstance in this case and I am satisfied that there would be such hardship were leave refused.

7. The Court is required to consider the reasons for any delay in making an application, the prejudice to the other party and the basis of any prima facie case.  None of those matters are particularly relevant in this matter, given that the parties jointly seek orders by consent and seek leave of the Court to have those orders made.  Hardship is not simply a matter of financial hardship.  It may also be the fact that the parties own properties together, that they no longer live together and it is no longer appropriate that they own property together. Again, I observe that that is the circumstance that arises in this case.  

8. The background to the matter is as follows.  The applicant is aged 51 years.  She is in employment. 

9. The respondent is aged 54 years.  He is a disability pensioner. 

10. The parties commenced their cohabitation in 1998 and separated in 2014. Hence, theirs is a relationship that spanned approximately 16 years.  The proposal of the parties is that there be a division of their non-superannuation assets on the basis of approximately 32 and a half per cent being retained by the applicant and the respondent receiving approximately 67 and a half per cent of the pool.

11. I am told that that adjustment appropriately reflects the many and varied contributions made by the parties during the course of their relationship.  It is an adjustment that reflects the fact that at the commencement of the relationship, the respondent held a property in Suburb D and that the proceeds of sale of that property were applied towards the acquisition of the jointly owned property.  It is an adjustment that also takes into account, the fact that the respondent is in poor health and is currently in receipt of a disability pension.

12. Having regard to the above factors, firstly, I am satisfied that it is appropriate that leave be granted pursuant to s 44(6) of the Act. Further, having regard to the background that is helpfully being provided via the statement of agreed facts, I am satisfied that the proposed orders are just and equitable. They appropriately reflect the contributions made by the parties during the course of the relationship and take into account, the relevant matters looking to the parties’ future.

13. Accordingly, I will make orders in the terms of the minute of consent order that is filed.  The minute will be marked with the letter A.  It will remain on the Court file.  I direct that the applicant’s solicitors engross and file the minute at court within seven days.   

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 May 2017.

Associate: 

Date:  2 May 2017