Merton and Merton

[2007] FamCA 264

FAMILY COURT OF AUSTRALIA

MERTON & MERTON [2007] FamCA 264

FAMILY LAW - PROPERTY SETTLEMENT – Complex litigation adjusted under contest in the Long Defended List – Practical resolution in the circumstances

APPLICANT: Mr Merton

RESPONDENT: Mrs Merton

FILE NUMBER: DGF 258 of 2005

DATE DELIVERED: 20 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 19, 20 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Whitchurch

SOLICITOR FOR THE APPLICANT: Perry Weston

COUNSEL FOR THE RESPONDENT: Mr Ramsay

SOLICITOR FOR THE RESPONDENT: Oakleys White

ORDERS

1. That the Husband pay to the Wife the sum of $255,000 (“the payment”) as follows:

   (a)$127,500 within or upon the expiration of 20 April 2007.

   (b)The balance being $127,500 within or upon the expiration of 20 August 2007.

2. That contemporaneously with the payment:

   (a)The Wife remove the caveat she has placed on “the real property” being the former matrimonial home and farm at W registered in the name of the Husband at her expense upon payment of the first instalment referred to in paragraph 1(a) therein.

   (b)The Husband indemnify the Wife against all payments and liability pursuant to the mortgage registered to R Company (“the mortgage”), the loan from the Husband’s father and the Commonwealth Bank overdraft and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.

3. That in the event that any of the payments that are not made in accordance with these orders then the Husband sign all documents and do all things necessary to transfer to the Wife the real property to be held on trust for sale (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

   (a)first to pay all costs, commissions and expenses of the sale;

   (b)secondly to discharge the mortgage and any other encumbrance affecting the real property;

   (c)thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 11% per annum adjusted monthly from the date to the Wife;

   (d)fourthly the balance to the Husband.

4. That the Husband indemnify the Wife against all liabilities relating to the former partnership businesses conducted by the Husband and Wife including any tax liability.

5. That pending the payment or completion of the sale:

   (a)the Husband have the sole right to occupy the real property and that during such right of occupation the Husband pay all instalments pursuant to the mortgage and all rates and taxes 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; and

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

6. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   (a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders the livestock, the plant, the furniture, personal possessions, and the like chattels in the real property being deemed to be in the possession of the parties respectively;

   (b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

   (c)insurance policies remain the sole property of the owner named thereon;

   (d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

   (e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

7. That the applications of the Husband and the Wife respectively filed on the 24^th day of March 2005 and on the 22^nd April 2005 be otherwise dismissed.

IT IS CERTIFIED

1. That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

it is directed

1. That all property/maintenance issues be removed from the Pending Cases List.

2. That the Minutes of Consent Orders remain on the Court file.

3. That the solicitor for the Husband file 3 clean copies of these Orders within 7 days.

the court notes:

That the parties intend these orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 258  of 2005

Mr Merton

Applicant

And

Mrs Merton

Respondent

REASONS FOR JUDGMENT

1. This matter has continued before me in the Long Defended List.  The welfare matters were adjusted yesterday and very much so to the credit of both the husband and the wife.  The issue of property was considered this morning and I was in a position to address both counsel in the presence of their clients and to provide a preliminary view.  [See Johnson v Johnson (2000) 201 CLR 488]

2. I understand the position that was advanced by each of the husband and the wife.  It is plain to me why the proceedings progressed to the litigation phase as each of them had polarised views of their respective entitlements.  They have now been adjusted.  I am very familiar with the whole of the facts and circumstances underpinning the property aspect and that of contributions pursuant to s 79(4)(a) to (c) and s 75(2) of the Family Law Act (1975) (as amended).

3. There is available to the court and to the practitioners by way of broad analysis a range in which just and equitable orders are made in cases such as this.  It is within the umbrella of that range that negotiations take place.  I would estimate that neither the husband nor the wife will be greatly enamoured with the adjustment.  However, it is in my view a just and equitable arrangement that sits seamlessly within the provisions of the Family Law Act to which I have just referred.

4. There are obligations on judges of this court to be satisfied that orders are just and equitable, notwithstanding that they are made by consent.  Given my knowledge of the factual matrix underpinning these orders I am so satisfied.  In the circumstances I mark the Minute of Consent Orders Exhibit “B”.

5. The parties came to this court in heated dispute.  Their case had the capacity to run five and longer days.  In my view, had they contested all issues I would estimate that it would have gone on into next week, with collateral damage to the future.  They are out of this court in two days.  They have the capacity now to get on with their lives.  I do congratulate the parties on having the strength and the dignity in coming to this arrangement.  I appreciate that in situations like this you can never really achieve the perfect solution. 

6. I am confident that within a reasonably short period of time both parties will come to appreciate that it is the best result that could be achieved in the circumstances.  Significantly, it has enabled both of them to get on with their lives.  This is what they must do. 

7. The parties are, in my view, to be heartily congratulated on achieving this result and much credit goes to their strength of character and to the professional representation each had in Court.  I wish them both the best for future.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  28 March 2007. 

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