Murcutt and Murcutt (No 2)

FAMILY COURT OF AUSTRALIA

MURCUTT & MURCUTT (NO 2) [2013] FamCA 573

FAMILY LAW – PROPERTY – Property settlement – Consent orders – Application to set aside – Where there has been partial compliance with the orders – Whether the valuation of property is proper – Where it cannot reasonably be suggested that the circumstances of the valuation being higher than the husband had thought possible is a circumstance which has made it impracticable for the orders to be carried out – Where it remains practicable for the orders to be carried out – Application dismissed.

Family Law Act 1975 (Cth) – s 37A, s 79A, s 79A(1)(b)

Harris v Caladine (1991) FLC 92-217; 14 Fam LR 593
In the Marriage of Cawthorn 23 Fam LR 86; (1998) FLC 92-805
In the Marriage ofRohde (1984) 10 Fam LR 56; FLC 91-592
In the Marriage of Prowse (1995) FLC 92-557; 18 Fam LR 348

APPLICANT: Mr Murcutt

RESPONDENT: Ms Murcutt

FILE NUMBER: SYC 1258 of 2009

DATE DELIVERED: 26 July 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 7 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gilbert

SOLICITOR FOR THE APPLICANT: Hunt & Hunt Lawyers

COUNSEL FOR THE RESPONDENT: Mr Grieve, QC with Ms Coulton

SOLICITOR FOR THE RESPONDENT: DC Legal

Orders

1. That the husband’s Initiating Application filed on 5 March 2009 as amended be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Murcutt & Murcutt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 1258 of 2009

Mr Murcutt

Applicant

And

Ms Murcutt

Respondent

REASONS FOR JUDGMENT

1. The issue in these proceedings is whether there is a basis to set aside certain final property orders pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”).

2. The parties are Mr Murcutt and Ms Murcutt.  For convenience I shall refer to them as “the husband” and “the wife”.

3. On 27 May 2005 final consent orders were made by a Deputy Registrar of this Court in relation to the parties’ property.  I shall refer in some detail to these orders below.  At this point, suffice it to say that while there has been partial compliance with the requirements of the orders, fundamental obligations remain outstanding.

Applications

1. The husband seeks orders to the following effect:

   ·That pursuant to s 79A(1)(b) of the Act orders 15.5 and 15.6 of the orders made on 27 May 2005 be set aside;

   ·That in their place the following orders be made:

   (a)That the husband transfer to the wife 66.66 percent of the total shareholdings held by him in all private and public companies as at the date hereof; and

   (b)That the husband transfer to the wife 66.66 percent of the total entitlements that he has in shares or other benefits pursuant to the provisions of the Murcutt Family Trust; and

   (c)      Such further…