Parrish and Parrish

[2007] FamCA 1591

FAMILY COURT OF AUSTRALIA

PARRISH & PARRISH [2007] FamCA 1591

FAMILY LAW – PROPERTY SETTLEMENT – Orders made by consent after considerable negotiation – Commentary on the background and suitability of those orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Parrish

RESPONDENT: Mr Parrish

FILE NUMBER: MLF 1379 of 2006

DATE DELIVERED: 19 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 19 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson

SOLICITOR FOR THE APPLICANT: Cynthia A Toose & Associates

COUNSEL FOR THE RESPONDENT: Mr Williams

SOLICITOR FOR THE RESPONDENT: Watson & McLeod

Orders

1. That within 30 days, the Husband do all things and sign all documents required to transfer to the Wife at her expense all his right, title and interest in:

   a.The VW Caravelle; and

   b.The property at …, T (“the home”).

2. That the Wife make available for collection by the Husband:

   a.The boat; and

   b.His items in the shed and including the boat;

   c.The Guzzi motor bike, the Husband to nominate a date for collection, but collect such items within 60 days. 

3. That the parties do all things and sign all documents required to sell:

   a.The jointly owned publicly listed shares (“the shares”);

   b.The property at …, W (“[the W property]”); and

   c.The property at …, G (“[the G property]”),“the investment sales”

   d.Upon terms as agreed or in default as determined by the President or his nominee of the REIV.

4. That the Wife have the conduct of the investment sales subject to paragraph 3(d) herein.

5. That the proceeds of each of the investment sales be applied:

   a.To pay any sale costs;

   b.To discharge any encumbrance secured over that asset;

   c.To set aside in a joint account a sum sufficient to meet the estimated capital gains tax attributable to the sale of that asset to be assessed in the parties’ names (and to the extent  the estimate is different from the actual Capital Gains Tax when assessed, the difference be shared as to 2/3 by/to the Wife and 1/3 by/to the Husband).

   d.The balance be divided as to 2/3 to the Wife and 1/3 to the Husband.

6. That in the event the home is sold prior to 31 December 2008, then to extent the net proceeds (after sale costs) exceed $350,000, the Wife pay to the Husband 1/3 of the difference.

7. That in the event the home is not sold prior to 31 December 2008, the parties jointly appoint a single expert valuer, and to the extent the valuation exceeds $350,000 the Wife pay to the Husband 1/3 of the difference within 30 days of such valuation.

8. That paragraphs 9-11 are binding on the Husband and Wife as trustees of the Parrish Superannuation Fund (“the Fund”).

9. That the base amount to be allocated to the Husband out of the Wife’s interest in the Fund is $97,000.

10. That pursuant to Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of a superannuation interest of the Wife in the Fund, the Husband shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount ($97,000) and there be a corresponding reduction in the entitlement the Wife would have had in the Fund, but for these Orders.

11. That these Orders take effect within 4 business days of service upon the trustees of the Fund (such service being deemed to have been effected today, the trustees being the Husband and Wife, and they acknowledging they have been accorded procedural fairness). 

12. That following the payment split being put into effect:

    a.The Husband roll out his entitlements in the Fund to a complying superannuation fund of his choice; and

    b.The Husband resign as a Trustee of the Fund.

13. That unless otherwise specified in these Orders:

    c.Each party retain all assets in their respective possession.

    d.Each party be solely liable for any liability relating to any property being retained by that party pursuant to these Orders.

    e.Each party retain their respective superannuation entitlements.

    f.Any joint tenancy is hereby expressly secured.

14. That all applications be otherwise dismissed and removed from the Pending Cases List.

15. Certify for Counsel.

NOTATION

The parties intend these Orders shall as far as practicable finalise their financial relationship and avoid further proceedings between them. 

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLF 1379 of 2006

MS PARRISH

Applicant

And

MR PARRISH  

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the regional sittings of the Family Court of Australia at Mildura.  Mr Dickson of counsel appears for the applicant wife and Mr Williams of counsel for the respondent husband.  The matter was called on late last week, and there were some preliminary discussions.  The matter resumed this day with the husband travelling from Western Australia to Mildura, a considerable distance, indeed.

2. By way of background, the wife's Form 1 Application for settlement of property was filed on 27 April 2006.  The husband caused to be filed the Form 1A Response on 2 July 2006.  The husband was born in June 1958.  He is 49 years of age.  The wife was born in October 1959 and is 47 years of age.  The parties met and subsequently married in April 1982.  Following unhappy differences between them, they separated in February 2005.  Theirs was a very long union.

3. There are three children born of their marriage, the eldest being S, who was born in September 1986.  She is 21 years of age, and as I understand it, is a second-year university student.  D was born in May 1989 and is 18 years of age.  He is taking his VCE at a boarding school.  M was born in February 1994 and is 13 years of age.  He suffers severe disabilities. 

4. I have had recourse to reading the affidavits filed in these proceedings and the Financial Statements of each of the parties.  The situation concerning M was dramatically, in my view, portrayed by the wife in her affidavit and in particular in paragraph 29.  Both of the parties have sacrificed much for the benefit of their children and are to be congratulated overall on their considerable dignity, their mediated compromise and their good commonsense. 

5. I am familiar with the financial structure of the parties and the contributions made by each of them over the term of their long union.  I have had explained to me a helpful outline of the rationale underpinning the compromise entered into by the parties, from which Mr Williams drew no dissent.  In my view, the agreement between them represents all those elements of sensibility and dignity.  I congratulate both the parties in coming to this arrangement.  I mark the Minute of Proposed Orders Exhibit “A”. 

6. I might say, that a reading of the documents in these proceedings brings home in a very stark and dramatic way and in a very salient manner the sacrifices each of the parents have made for their children, in particular for M and the great sense of love that is directly associated with and in step with that great sacrifice.  I congratulate the parties on coming to this arrangement.  I wish them both the best in the future.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  17 January 2008.