Paton and Norwood

[2017] FamCA 357

FAMILY COURT OF AUSTRALIA

PATON & NORWOOD [2017] FamCA 357

FAMILY LAW – PROPERTY – de facto relationship – where the application for consent orders has been filed outside the standard application period – where leave is granted to the applicant to file the application out of time – final property orders made – just and equitable

Family Law Act 1975 (Cth) ss 44(5), 44(6)

APPLICANT: Ms Paton

RESPONDENT: Mr Norwood

FILE NUMBER: MLC 1301 of 2017

DATE DELIVERED: 2 May 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 2 May 2017

REPRESENTATION

SOLICITOR APPEARING FOR THE

APPLICANT:

Mr Hudson

SOLICITOR FOR THE APPLICANT: Hartleys Lawyers

SOLICITOR APPEARING FOR THE

RESPONDENT:

Ms Earl

SOLICITOR FOR THE RESPONDENT: Ryan Carlisle Thomas

Orders

BY THE COURT

Jurisdiction

1. The Court grant leave for this application to proceed out of time. 

BY CONSENT

Trust Monies Distribution

1. That the remainder of proceeds of the sale of the matrimonial property (“The Proceeds”) previously situated at B Street, Suburb C in the State of Victoria, be disbursed as follows:

   (i)68 per cent to the De Facto Wife (“The Wife”);

   (ii)32 per cent to the De Facto Husband (“The Husband”);

Superannuation Split – D Super

1. That paragraphs 3 to 7 inclusive of these Orders are binding on D Super Pty Ltd ("the Trustee") in its capacity as Trustee of D Super (“The Superannuation Fund").

2. That the base amount to be allocated to the Wife out of interests of the Husband in his superannuation fund is: $180,013.98 and there is a corresponding reduction in the entitlement that Mr Norwood would have had but for these orders.

3. That pursuant to Section 90MT(1)(a) of the Family Law Act 1975 ("The Act") whenever a splittable payment becomes payable in respect of the interest of the said Husband in the Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation)Regulations 2001 ("the Regulations") using the base amount

4. That Orders 3 and 4 have the effect from the operative date.

5. The operative date for the purpose of these Orders is the fourth business day after the day on which a certified copy of these sealed orders is served upon the Trustee by either of the parties.

Motor Vehicles

1. The wife retain her Motor vehicle 1 of registration …;

2. The husband retain his Motor vehicle 2 of registration …;

3. That both parties shall retain possession and interest in their respective motor vehicles and that within 30 days of the date of these Orders both parties do all acts and things and sign all documents necessary to transfer the respective motor vehicles to their agree owner at each party’s sole expense.

Finalisation

1. That unless otherwise specified in these Orders and except for the purpose of enforcing the payment of any moneys under these or any subsequent Orders:-

   (a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party at the date of these Orders save as provided for in these Orders;

   (b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

   (c)Each party hereby forgoes any claim they may have to any superannuation benefit and /or any interest in any trust or deceased estate that is payable to or belonging to or owned by the other save as provided for in these Orders;

   (d)All insurance policies are to become the sole property of the owner named therein;

   (e)Each party be solely liable for and indemnify the other against any liability in their sole name including but not limited to any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

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

NOTATION

A.That pursuant to Section 81 of the Family Law Act 1975 (Cth) the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

B.The net proceeds of the sale of the matrimonial property are $419,356.54. There has been a $30,000.00 distribution from the proceeds of sale of the matrimonial property to each party. The remainder trust cheques are therefore $255,162.45 for the Wife, and $109,194.09 for the husband.

C.The base amount of $180,013.98 represents an equalisation of the Husband and Wife super being $386,669.53 plus 26,641.58 divided by 2 equals 206,655.55. The Wife has 26,641.58 in Superannuation and the base amount plus the Wife Superannuation equals 180,013.98.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1301 of 2017

Ms Paton

Applicant

And

Mr Norwood

Respondent

REASONS FOR JUDGMENT

1. The matter of Paton & Norwood comes before the Court today, upon an application for consent orders, filed on behalf of the applicant on 14 February 2017. The parties come to Court today seeking that the Court make final property orders that will bring to an end the financial relationship between them. As the application is made outside the standard application period, the parties seek leave of the Court, pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”).

2. Section 44(5) of the Act provides that a party to a de facto relationship may apply for orders, under the Act, for the alteration of property interests, only if the application is made within two years of the end of the de facto relationship. That is what is referred to as the standard application period.

3. Section 44(6) of the Act provides that the Court may grant the party leave to apply after the end of the standard application period if the Court is satisfied that hardship would be cause to a party or a child if leave were not granted. The Court is required to consider the reasons for any delay in making an application, and the prejudice to the other party, and the basis of any prima facie case. None of those matters are relevant in this case, given that the parties come to Court together, seeking orders by consent, and jointly seeking leave of the Court to have the orders made.

4. Hardship is not simply a matter of financial hardship. Hardship may also be the fact that the parties own property together, that they no longer live together, and it is no longer appropriate that they own property together. That is the circumstance that presents itself to the Court in this matter, the parties having had a jointly owned property in Suburb C, which has been sold, but where the proceeds of the sale of that property are held on trust for the parties. The reality is that neither party can move forward, in terms of a division of those sale proceeds, without leave of the Court and orders being made. Having regard to that circumstance, and in circumstances where the delay in bringing the application is only of relatively short duration, being a period of approximately three to four months, I am satisfied that it is appropriate, in circumstances that leave be granted to the parties, pursuant to section 44(6) of the Act.

5. Turning then to the background of the matter.  The applicant is aged 50 years.  She is employed on a part-time basis, and she has some health issues, particularly chronic fatigue syndrome and fibromyalgia, which impact her capacity for further work. 

6. The respondent is aged 54 years.  He is engaged in full-time employment and the application for consent orders indicates he has an income from that employment of approximately $99,000 per annum.

7. The parties commenced their cohabitation in 1992, and separated in 2014.  Theirs is a relationship that spanned approximately 22 years. 

8. There are two children of the relationship, F, who is aged 17, and E, who is aged 12.  There are no parenting orders with respect to the care arrangements for the children, although I understand from the application for consent orders, that it is agreed that the children live with the applicant and that they spend time with the respondent.  There is an assessment of child support, and I am informed that the respondent is paying child support in accordance with that assessment.

9. As to the proposed division, the pool of assets is approximately $837,000.  What is proposed is that the sale proceeds from Suburb C, together with the other non-superannuation assets, be divided on a 68/32 split in favour of the applicant.  I am told that an adjustment in those terms, firstly, reflects the contributions made by the parties throughout the course of their relationship, and further takes into account the s 90SF factors, and particularly the income disparity between them.  As I have already noted, the applicant has health issues.  She also has the ongoing primary care of the parties’ two children.  Accordingly, I am told that that adjustment is appropriate.  Otherwise, the parties seek an order for a superannuation split, so as to equalise the parties’ superannuation interests that have been accumulated throughout the course of the relationship.

10. I am satisfied that the trustee of the relevant superannuation fund has been accorded procedural fairness, a letter from that fund having been provided.  That letter dated 20 December 2016 indicates the trustee’s consent to the orders as sought this day.  That letter has been marked as an exhibit and will remain on the Court file.  It is exhibit A1. 

11. Having regard to the matters to which I have referred, I am satisfied that the proposed orders are just and equitable. Accordingly, I will make orders in the terms of the minute that has been signed by the parties.  The minute will remain on the Court file.  It will be marked with the letter A, and I direct that the applicant’s solicitors engross and file that minute at court, within seven days, noting that order 1 is not a consent order.  It is an order of the Court, and the balance of the orders from paragraph 2 on will be orders made by consent.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 May 2017.

Associate: 

Date:  2 May 2017