Moffat and Moffat

[2010] FamCA 304

FAMILY COURT OF AUSTRALIA

MOFFAT & MOFFAT [2010] FamCA 304

FAMILY LAW – CONSENT ORDERS

Family Law Act 1975 (Cth)

APPLICANT: Ms Moffat

RESPONDENT: Mr Moffat

FILE NUMBER: MLC 561 of 2010

DATE DELIVERED: 23 March 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: CRONIN J

HEARING DATE: 23 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cowin

SOLICITOR FOR THE APPLICANT: Robinson Gill

THE RESPONDENT: In person

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the reasons provided this day be transcribed and be placed on the court file.

3. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ML C561 of 2010

MS MOFFAT

Applicant

And

MR MOFFAT

Respondent

REASONS FOR JUDGMENT

1. On 21 January 2010, the parties, through the solicitors for the wife, filed an application seeking that the Court make consent orders pursuant to Chapter 10 of the Family Law Rules 2004. The Registrar, who has had considerable experience over many years in this court, was not at all comfortable about the structure of the orders and declared at the time that she wanted further information from the parties and indicated that, in her view, as they were then structured, the orders were not just and equitable. The parties did prepare a statement of agreed facts which I have now read, and that went back to the Registrar who, on 10 March of this year, still stood by her earlier position that the agreement was not just and equitable.

2. Consequently, as is the requirement of the court, the Registrar adjourned the matter into open court for some discussion.  The husband represents himself.  At my suggestion this morning, he saw the duty solicitor to obtain some advice.  That seems to have been the first time that he has had legal advice in this case.  In the application for consent orders, he, in fact, said that he had had legal advice but that seems to have been wrong.  In discussions, the husband has told me that the parties separated some four years ago and went off to a relationships counsellor who made some suggestions which appears remarkably like advice.

3. If that was, in fact, what occurred and it was advice, then it was totally inappropriate for that to happen.  I say that because the husband has worked from the premise that that was the way the agreement should be structured, and he seems to be a man of his word and as a result of that, he has maintained his position.  The facts in this case are that it is a 23 year marriage with two children, both of whom are adults.  Whilst the wife says, and the husband agrees, she is still providing for them, it is a case where the Court should not take that into account having regard to their ages.

4. The parties have either two pools or one pool, depending upon which way you look at it.  The house has been sold and a former investment property was likewise sold and so the principal assets are now in cash. The non-superannuation assets appear to be around $500,000.  The superannuation assets are slightly different.  The wife who is a 51 year old teacher earning $55,000 a year, has accrued superannuation entitlements of $258,000.  The husband, who is a 50 year old yards-person has $32,000 in superannuation accumulation funds.  It will be seen, therefore, there is a marked disparity between the two funds.

5. If the funds are added to the non-superannuation assets, the parties have an overall equity in assets of about $800,000.  The settlement proposed by the parties is that that equity be divided as to 70 per cent to the wife and 30 per cent to the husband.  If the superannuation is treated as a separate asset within the pools, then the division amounts to 40 per cent to the husband and 60 per cent to the wife of the non-superannuation assets, and 89 per cent to the wife and 11 per cent to the husband of the superannuation assets.  The husband said that he agreed with what Ms Cowan, on behalf of the wife, said about the background leading up to the agreement.

6. The position in respect of contribution is, and it is common ground, that the wife earned more than the husband, and the parties had separate bank accounts, and the husband used his money for his own purposes.  In other words, it was the wife who was supporting the family.  In addition, the parties agreed that the wife’s contribution as a home-maker and parent was greater than that of the husband.  It is also conceded that after separation, the wife continued to pay the mortgage obligation, notwithstanding she was also in alternate accommodation.  On that basis, I am justified in making a finding that the contributions of the wife exceeded those of the husband.

7. Section 79 of the Family Law Act 1975 (Cth) (“the Act”), however, requires the Court to also look at s 75(2) factors and in this case, the wife says there should be no further adjustment albeit that there is a disparity of earnings and, I also presume, security of tenure. Looking at the statement of agreed facts, the children who are still living with the wife, are certainly old enough to be supporting themselves, notwithstanding the parents continue to have a moral obligation to provide for them. It seems to me that the disparity between the parties’ incomes would potentially warrant some justification for an adjustment in the favour of the husband but the parties do not want that.

8. Section 79 of the Act also requires that a court should not make an order unless it is satisfied that it is just and equitable in the circumstances. To determine what is fair in the circumstances, one has to look at the underlying difference between what the parties are receiving. It is not the percentages but the dollar value of what they are getting that must be just and equitable. The difference, in an overall sense, is that the wife is getting more than double what the husband is getting. As I have indicated, the justifying circumstances here, are that the contributions of the wife were greater than the husband.

9. It is with some hesitation then I am satisfied that the case warrants the orders being made.  As I pointed out to the parties, the husband and wife could go outside of the court and make these orders by themselves and implement them by either simply carrying out what they have agreed or, in fact, by way of a financial agreement.  What one or both of the parties wants to occur here is for the court to endorse the settlement as being fair.  Based upon the statement of agreed facts, it seems to me that I can say this is within the range, albeit, as I said, with some hesitancy, and in the circumstances, I will make the orders.

10. I propose, however, to have these reasons transcribed and placed on the file so there can be no argument in the future about the circumstances under which the settlement was structured.  In the matter of Moffat, I will make orders by consent of the parties in terms of the minutes.   I will direct the minute remain on the court file.  I will ask the solicitor for the wife to email to my associate in Word format the current minute.  I will direct the reasons be transcribed and be placed on the court file. 

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

Associate: 

Date:  21 April 2010