Oppeh & Oppeh

[2008] FamCA 236

FAMILY COURT OF AUSTRALIA

OPPEH & OPPEH [2008] FamCA 236

FAMILY LAW – PROPERTY – Application for consent orders referred by the Registrar as they purport to transfer all of the family assets to the wife – The husband is represented and the wife appears in person – Following being satisfied as to knowledge of the circumstances of both parties orders for property settlement made

FAMILY LAW – CHILDREN – Shared parenting orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Oppeh

RESPONDENT: Mrs Oppeh

FILE NUMBER: MLC 1728 of 2008

DATE DELIVERED: 2 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 2 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McMillan

SOLICITOR FOR THE APPLICANT: Pearsons Barristers & Solicitors Pty Ltd

THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

CHILDREN

1. That the Husband and Wife have equal shared parental responsibility for the children of the marriage namely B born on … February 1996 and K born on … September 1993.

2. That the children live with the Wife.

3. That the Husband spend time with the children as agreed between the parties.

4. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

PROPERTY

1. That within 14 days of the making of these orders by this court the Husband do all such things and sign all such documents as may be required to transfer to the Wife as the expense of the Wife all of his right, title and interest in the real property known and situate at M in the State of Victoria being the whole of the land more particularly described in the Certificate of Title Volume … Folio … (“the real property”).

2. That contemporaneously with the transfer the Wife discharge the mortgage owing on the property owing to the Colonial Bank and refinance the mortgage in her name solely and indemnify the Husband against any liabilities pursuant to the mortgage and all the rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.

3. That the Husband indemnify the Wife against any liabilities pursuant to the Commonwealth Bank Visa Card in the Husband’s name and possession and the Westpac Visa Card in the Wife’s name and possession.

4. That the Wife retain the Ford motor vehicle currently registered in her name and in her possession.

5. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

   (a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the matrimonial home are considered to be in the possession of the Wife).

   (b)money standing to the credit of the parties in any joint bank account is to become the property of the Wife.

   (c)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.

   (d)all insurance policies to become the sole property of the beneficiary named therein.

   (e)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;

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

6. That all extant applications be otherwise dismissed and the proceedings be removed from the active pending cases list.

THE COURT NOTES

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1728 of 2008

Mr Oppeh

Applicant

And

Mrs Oppeh

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List and is an Application for Consent Orders concerning child welfare and property matters.  It originally was listed before Registrar Sikiotis who was concerned that the proposed consent orders purported to provide for the transfer all of the major assets to the wife.  For his part, the husband retained his income and otherwise took responsibility for debts of $19,000.  He has no superannuation. 

2. It was the view of Registrar Sikiotis that such a settlement, after a 10‑year relationship and notwithstanding that the two children live with the wife and the husband was not at the time paying child support, did not appear on the face of the information provided in the Application to be an equitable legal division of the parties' assets.  Registrar Sikiotis then gave time to the parties to remedy what she considered to be certain defects in the papers placed before the court. 

3. Registrar Sikiotis subsequently received a letter from the husband's solicitors advising that the husband did not wish to amend the orders, but persisted with seeking their approval in their current form.  It was in those circumstances that the learned Registrar remitted the matter to the Judicial Duty List for my determination this day. 

4. Furthermore, it was the view of Registrar Sikiotis that the wife should obtain independent legal advice prior to the court hearing to assist in presenting her case in court and redrafting the documents.  Alternatively, it was suggested by her that the wife may consider whether this settlement might be more readily approved pursuant to a Binding Financial Agreement.  Whatever the situation, the wife was well and truly appraised of the view of the learned Registrar.  A letter encompassing those terms was forwarded, as I said, by the Registrar to the wife and to the solicitors for the husband. 

5. The husband comprehensively understands that the wife will receive all of the matrimonial assets, on the face of it at least, and that he will retain his earnings (when employed).  He will also be responsible for certain liabilities, credit cards and the like, amounting to $19,000.  He is presently unemployed.  He and the wife have an arrangement, as the wife understands it to be, that he will pay child support of $500 per calendar month when he is employed.  The wife currently receives a pension entitlement amounting to approximately $1900 per calendar month. 

6. The orders provide that the husband transfer to his wife his right, title and interest in the former matrimonial home at M, which is subject to a mortgage.  The orders further provide that contemporaneously with the transfer the wife discharge that mortgage on the property in favour of the Colonial Bank, and be responsible to refinance the mortgage in her name and indemnify the husband against all liabilities pursuant to any such mortgage, together with all rates, taxes and outgoings in respect of the property.

7. I am informed by the wife, who sits at the Bar table this day and has the assistance of an interpreter, that she has made arrangements to refinance the property with the National Australia Bank.  Although it might be a struggle, the impression I have is that she fully understands that is her responsibility and that she sees there being little, if any, difficulty in making payments pursuant to a mortgage.

8. It must be understood, however, that the whole of the assets, so far as they are disclosed, are being transferred to her.  She will receive a substantial equity in this property of approximately $220,000.  The rationale behind the settlement, so far as the husband is concerned and explained to me by Mr McMillan who appears for the husband this day, is that he is mindful that the children have a home in which to live. 

9. Furthermore, the husband has been advised as to his legal rights pursuant to the provisions of section 79(4) and section 75(2) of the Family Law Act 1975 (as amended). He is also aware that the orders are generous ones indeed as, on the face of them, he is transferring all the matrimonial assets of their union to the wife.

10. The welfare aspect of the Minute of Consent Orders provides that the husband and wife share equal parental responsibility for the two children, B who was born in February 1996 and K who was born in September 1993 and that they live with her.  It further provided that the "husband spend time with the children as agreed between the parties".  I asked Mr McMillan how often the husband sees the children.  It was made clear to me, and indeed conceded by the wife, that he sees them “most days”, if not every day. 

11. This is a private arrangement.  I do not propose to stand in the way of the parties’ consent agreement.  It does appear on the face of it to be a generous proposal.  However, it is one clearly understood by the husband and one which he persists in advancing.  He has had the benefit of legal advice.  The wife places no barrier to it and has made it perfectly clear to me, through the interpreter, that she is content with the orders.

12. This sort of private resolution can sometimes intuitively attract attention.  However, it is the presence of Mr McMillan here this day for the husband that persuades me, firstly, that he husband is fully aware of his rights, his duties and his obligations pursuant to the provisions of the Act.  Secondly, that the husband and wife were sitting together in court earlier this day and I rather suspect they enjoy quite a good relationship.  I would be very surprised if I was wrong on that observation.  I also accept the fact that when the husband is employed he will do the best he can to support the children.  That is the expectation of the wife.  In those circumstances, it appears to me that it is an appropriate order to make.

13. Finally, all I need say is this by way of short background.  The parties married in Turkey in September 1992.  They have two children of their union, B and K, to whom I have earlier referred.  They separated in November 2002.  The application for consent orders was filed on 27 February 2008.  Between the date of separation in 2002 and this day the parties have had sufficient time in which to work out their arrangements.  This they have done. 

14. I have been advantaged with a copy of the Turkish marriage certificate.  I do not seem to have a translation of it at this stage, but will accept an assurance by Mr McMillan that a translation of that marriage certificate will be provided to the court.  I will direct that a copy of the marriage certificate remain on the court file. 

15. I make orders in terms of the Minute of Consent orders marked Exhibit "A" and to be added to that minute will be a paragraph 10 in the following terms, "That all extant applications be otherwise dismissed and the proceedings be removed from the active pending cases list."  I will direct solicitors for the applicant husband to engross the orders. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  11 April 2008.