Price and Underwood

[2009] FamCA 615

FAMILY COURT OF AUSTRALIA

PRICE & UNDERWOOD [2009] FamCA 615

FAMILY LAW – CONSENT ORDERS

Family Law Act 1975 (Cth)

APPLICANT: Ms Price

RESPONDENT: Mr Underwood (deceased) through his legal personal representative

3^RD RESPONDENT: N Underwood

4^TH RESPONDENT: J Underwood

FILE NUMBER: MLC 13425 of 2007

DATE DELIVERED: 9 JULY 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 8 JULY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR P DAVIS

SOLICITOR FOR THE APPLICANT: MARIA BARBAYANNIS & CO

COUNSEL FOR THE RESPONDENT: MR ROYSTON

SOLICITOR FOR THE RESPONDENT: LANDER & ROGERS

COUNSEL FOR THE 3^RD AND 4^TH RESPONDENTS: MR D BROWN SC WITH MR O'SHANNESSY

SOLICITOR FOR THE 3^RD & 4^TH RESPONDENTS: MIDDLETONS

Orders

1. That all proceedings this day in the Judicial Settlement Conference between the parties be recorded in the usual way.

2. That no person have access to any transcript or audio recording of these said proceedings without my specific order.

3. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

4. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

5. That my reasons be released to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13425  of 2007

MS PRICE

Applicant

And

MR UNDERWOOD (DECEASED) through his legal personal representative

Respondent

And

N UNDERWOOD

3^RD Respondent

And

J UNDERWOOD

4^TH Respondent

REASONS FOR JUDGMENT

1. On the evening of 8 July 2009, I made final orders between the parties resolving all financial issues outstanding between them.  Those orders arose out of minutes signed by all parties or on their behalf.  Those minutes are on the court file as an exhibit.

2. This settlement came at the end of a long day in which I conducted a judicial settlement conference.  I have made orders that no person have access to the transcript or audio recordings of what occurred during the day without my future permission.

3. The applicant wife was represented by Mr Davis of counsel.  The legal personal representative of the late husband was represented by his solicitor Mr Royston.

4. The two older children of the husband who were respondents to the proceedings were represented by Mr Brown SC and Mr O’Shannessy of counsel.

5. All parties signed the original minutes and requested that I make the orders as final.

6. Mr Davis on behalf of the wife indicated that the settlement represented a percentage of a highly controversial pool of assets but that fundamentally, this was a sensible compromise avoiding a one to two week trial.  In his view and I agree, the settlement was well within the range of possible outcomes.  To those views, I would add that the settlement avoided significant cost and a very high emotional toll on not just the wife.

7. Mr Brown on behalf of the two children described the settlement as a classical example of a case which fell within the bounds of reasonable disagreement.  Those were different words to Mr Davis but the sentiments were identical.  To those words, I would add that the settlement enables his clients to get on with their lives as their late father would have wanted them to.

8. Mr Royston on behalf of the legal personal representative for the husband told me that he had spoken to his client who had instructed him to sign the minutes. 

9. This settlement has a strong ring of commonsense about it as well as commercial reality. Be that as it may, s 79 of the Family Law Act 1975 (Cth) (“the Act”) requires that a court may only make orders if it is satisfied that they are just and equitable in the circumstances. In this case, I understand the respective parties’ views about the pool of assets and also how they would each approach the arguments about s 79(8), contributions and the various factors under s 75(2) of the Act as they specifically apply to the wife.

10. I am satisfied in the circumstances that this settlement is a just and equitable one.

I certify that the preceding Ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  15 July 2009