Morton and Morton (No. 2)

[2007] FamCA 1710

FAMILY COURT OF AUSTRALIA

MORTON & MORTON (NO. 2) [2007] FamCA 1710

FAMILY LAW – PROPERTY SETTLEMENT and SPOUSAL MAINTENANCE – Wife’s applications for property settlement and spousal maintenance consented to by husband and not opposed by husband’s trustee in bankruptcy

Family Law Act 1975 (Cth)

APPLICANT: Ms Morton

RESPONDENT: Mr Morton

FILE NUMBER: MLC 9885 of 2007

DATE DELIVERED: 24 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Watt J

HEARING DATE: 24 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance by or on behalf of the husband

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERESTED PARTY

(HUSBAND’S TRUSTEE IN BANKRUPTCY):

Mr Sievers

SOLICITOR FOR THE INTERESTED PARTY: Forte Family Lawyers

Orders (by consent between husband and wife, the husband’s trustee in bankruptcy not opposing the making of these orders)

1. I grant leave to the wife to make oral application made this day an order for spousal maintenance in the sum of $3000 per month and I dispense with the requirement of further service of the application having regard to the contents of the husband's letter dated 9 October 2007.

2. The husband's trustee in bankruptcy is to pay to the applicant wife within 14 days of the service upon the solicitor for the trustee in bankruptcy of these orders all of the net proceeds of the sale of the property known as …, D in the state of Victoria presently held by the trustee.

3. That the husband pay to the wife for her maintenance the sum of $3000 per month the first payment to be made on 20 November 2007 and payments to be made on the 20th day of each month thereafter.

4. That I reserve liberty to the husband to make application in relation to the maintenance order (in that it is a final order as opposed to an interim order as sought by the wife in her application in her case filed 9 October 2007) within seven days of service upon him of this order, such application to be made in writing to my associate, …, associate to Justice Watt.

5. I direct that the wife serve a sealed copy of this order upon the solicitor for the husband's trustee in bankruptcy and the husband as soon as practicable.

6. The court requests that the registrar of the Federal Magistrates Court at Melbourne arrange for the hearing date of 11 December 2007 for this matter to be vacated having regard to the orders made this day and I direct that the Registry Manager arrange for a copy of this order to be sent to the Registrar of the Federal Magistrates Court at Melbourne..

7. All applications are otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9885 of 2007

MS MORTON  

Applicant

And

MR MORTON  

Respondent

REASONS FOR JUDGMENT

1. The history of these proceedings is quite convoluted and I will not recite it in detail.  In summary, after a very long marriage the parties have separated and notwithstanding the husband's bankruptcy, the wife seeks orders for property settlement and maintenance.

2. The trustee, although not a party to the proceedings, has been served with the documents and has been involved in the proceedings to the extent that they have been brought to the solicitor for the trustee's attention and the trustee has indicated no objection to the making of the orders sought by the wife.  I will not make them by consent on that basis save as between husband and wife. 

3. However the applications before me relate to a very modest sum that will be represented by the proceeds of sale of a block of land at D in the state of Victoria and she also seeks an order in the Federal Magistrates Court for spousal maintenance of $3000 per month.  That order is sought as an interim order and there was no application filed for a final order in similar terms. The letter of consent from the husband dated 9 October 2007 clearly indicates his consent to the making of both the orders as to property settlement and spousal maintenance.

4. Out of an abundance of caution because there was only an application in a case filed in relation to spousal maintenance, I will allow the husband seven days after service of this order on him to make application to the court in relation to the spousal maintenance order and why it should not proceed or continue as a final order.

5. The tenor of his letter however is one of cooperation and readiness to consent to what the wife is seeking and the affidavit which I am satisfied has been served on him filed in support of the application for maintenance itself sets out circumstances which the husband acknowledges that he has read. He has taken no issue with the wife’s statements and that affidavit in my view provides sample basis for me to be satisfied that the property order sought by the wife is just and equitable within the meaning of section 79(2) of the Family Law Act 1975.  That is her affidavit sworn on 9 October 2007 and filed in the Federal Magistrates Court in support of her application for spousal maintenance.

6. I am satisfied that it is appropriate to make the orders sought by the wife.

7. By consent as between the husband and the wife and I will add to the recitals that the husband's trustee in bankruptcy is not opposing the making of those orders.

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

Associate

Date:  22 April 2008