Rider and Rider and Ors

[2008] FamCA 261

FAMILY COURT OF AUSTRALIA

RIDER & RIDER AND ORS [2008] FamCA 261

FAMILY LAW – PROPERTY – Minutes of agreed property orders between husband and wife and wife’s parents reached in a successful mediation approved and made by the court as being just and equitable in the circumstances.  All parties independently represented.

Family Law Act 1975 (Cth)

APPLICANT: Mr Rider

RESPONDENT: Mrs Rider

2^nd AND 3^rd RESPONDENT INTERVENORS: Mr and Mrs Rider (snr)

FILE NUMBER: MLC 11110 of 2007

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 Sheehan

SOLICITOR FOR THE APPLICANT: Marshall Sheehan

COUNSEL FOR THE RESPONDENT: Mr Binnie

SOLICITOR FOR THE RESPONDENT: Bellbridge Hague

COUNSEL FOR THE 2^ND & 3^RD RESPONDENTS: Mr Lumley

SOLICITOR FOR THE 2^ND & 3^RD  RESPONDENTS: Lumleys

Orders

1. That the husband’s parents, (“the second and third respondents”) be and are joined as parties to the proceedings.

1. That within 60 days of the date of these orders:-

2.1That  the Husband and the second and third respondents do all such things and sign all such documents as may be required to transfer to the Wife at the expense of the Wife all of their respective rights, title and interest in the real property situated and known as L (L property) and all and any share water entitlements attached or relating to the property (currently 92 Megalitres),  and being the whole of the land more particularly described in Folio Identifier … (the L property transfer).

2.2Contemporaneously with the L property transfer the Husband and the second and third respondents pay discharge and indemnify the Wife against all payments and liabilities pursuant to the Mortgage registered No. … (“the mortgage”) to the National Australia Bank Ltd on the property known as L property and all rates, taxes and outgoings with respect to the real property of whatsoever nature and kind.

2.3Contemporaneously with the L property transfer wife shall do all such acts and things and sign all such documents as may be required to transfer to the Husband, or his nominee, at the expense of the Husband all of her right, title and interest in:

(a)The real property situated and known as T property (including the 711 Megalitres MIL share water entitlement which is attached to the property), and being the whole of the land more particularly described in Certificate of Title Folio … and;

(b)The partnership of the husband, the wife and the second and third respondents known as A & B & R & S Rider (the 4 way partnership) and;

(c)The partnership of the husband, the second and third respondents known as A & B & R Rider (the 3 way partnership) and;

(d)The farming business conducted by the husband and/or the wife, and/or the 4 way partnership, and/or the 3 way partnership.

(e)The farming property known as R and;

(f)The farming property known as G;

Herein after collectively referred to as the Rider Family Entities.

2.4Contemporaneously with the L property transfer, the husband and second and third respondents obtain the discharge of the wife from and indemnify the Wife against all payments and liability pursuant to the Mortgage registered No … to Mr and Mrs M as joint tenants and all rates, taxes and outgoings and all other liabilities including any taxation due of or relating to income or loan payments or deregulation payments (including any tax debt relating to the partnership or milk deregulation payment which includes tax debts of $12,233.00 and $5,717.00 respectively) of or relating to the Rider Family Entities of whatsoever nature and kind.

2.5That contemporaneously with the L property transfer the Wife pay to the Husband the sum of $50,000.00 (the payment).

2.6That contemporaneously with the L property transfer the Wife shall do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her right, title and interest in the real property situated at and known as R property, (including the 260 Megalitres MIL share water entitlements which is attached to the property) and being the whole of the land more particularly described in Certificate of Title Identifier ….

1. 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:

   3.1each 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 this date, with the exception that the wife is to retain the items that are listed in annexure “A” which are to be made available by the husband for the wife to collect within 14 days;

   3.2each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;

   3.3all insurance policies to become the sole property of the beneficiary named hereunder;

   3.4each 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;

   3.5any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

1. That the Husband shall make available to the Wife for her to copy all of the photos in the former matrimonial home and/or the husband’s possession including albums, pictures and the like for her to make and keep copies and shall then return the originals to the Husband.

1. That all extant applications be dismissed and removed from the active pending cases list.

ANNEXURE A

Lounge room                   Wall unit and contents
Kitchen  Pots
Laundry  Dryer
Master Bedroom Mirror and bedroom suite
Photos and albums

NOTATION:

The husband and the second and third respondents agree to allow the wife access to the property known as L property for the purpose of an inspection by the Commonwealth Bank and they also agree to allow the wife and/or her agent to inspect the property known as L property on at least 2 other occasions.

The persons who are to inspect the property are to advise the husband at least 48 hours before they intend to inspect the property known as L property.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11110  of 2007

Mr Rider

Applicant

And

Mrs Rider

Respondent

And

Mr and Mrs Rider (snr)

2^nd and 3^rd Respondent Intervenors

REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List and has had a rather chequered history, initially being before Watt J on two occasions.  His Honour, and properly so, was required to be satisfied as to a number of issues, particularly given that the second and third named respondents, being the parents of the husband to the proceedings, were parties in the sense that their property rights were being affected by the proposed orders. 

2. The background to the matter has been very satisfactorily set out, in my view, in an affidavit deposed to by the husband and filed on 8 October 2007.  In summary, the husband and the wife were married in August 1992.  There are two children born of their union, a daughter, who was born in July 1993, and a son, who was born in October 1994. 

3. As I understand it, the parties separated on 1 April 2007.  After separation, the husband resided at his parents' farm, G property, in southern New South Wales and the respondent at that time moved to her home at W, in southern New South Wales. 

4. I do not see it as being necessary that I should recite into this short extempore judgment the further background material to the matter, save for me to say that I have carefully read that affidavit which sets out the fundamental background that assists me in my task in determining whether the consent orders that have been agreed upon between the husband, the wife and the second and third named respondents are just and equitable. That is a mandate that falls upon me pursuant to the provisions of section 79(2) of the Family Law Act (1975) (as amended). 

5. Mr Sheehan appears this day in court for the applicant husband and Mr Binnie appears by telephone for the respondent wife.  The wife is present with him at his office in Albury.  Mr Lumley, solicitor, appears for the second and third named respondents, again by telephone, both of whom are also with him this day.  I have been informed by Mr Sheehan that the overall settlement reflected in the Minutes of Consent Orders (which I will mark Exhibit "A") were mediated by Mr Wood, a barrister who is very experienced in Family Law.  Mr O'Shannessy appeared for the wife at that mediation and he too bears a stellar reputation in Family Law. 

6. I am satisfied, from what I have read and what I have been informed by Mr Sheehan and with which Mr Binnie and Mr Lumley in substance agree, that the proposed orders are just and equitable.  The effect of the orders, principally, is that the wife will receive a property which is known as L property, being approximately 100 acres.  It is a small rural property, with attached Water Rights.  Although there is some dispute as the valuation of those Water Rights, it matters little, because the overall value of the property, including the rights, is approximately $300,000. 

7. That property houses the wife and the two children of the marriage to whom I have earlier referred.  It is a substantial three to four bedroom home in southern New South Wales.  The home is close to where the wife works and is also close to where the husband lives.  It appears to me, from what I have read, that the welfare arrangement concerning the two children and the relationship with each of their parents and the time spent with their father is a satisfactory one. 

8. In considering a matter of this nature I have a broad discretion to make such orders as I consider appropriate tempered by the requirement of such orders being just and equitable in the discrete circumstances of each particular case.  In undertaking a task such as this, I am required to take into account those matters set out in section 79 of the Act. 

9. It is plain that the legislation provides to me a discretionary power to adjust the property interests of the husband and the wife, and in this case including the participation of the second and third named respondents, in a manner that will do justice and equity between them.  Accordingly, the discretion is an extensive one.  It is also plain that a judge in my position is not obliged to adopt an excessively mathematical approach when considering contributions, but rather a broad estimate of contributions, and otherwise matters of prospective adjustment pursuant to section 75(2) of the Act.  It is a task of authoritative and informed judgment, not of exact computation. 

10. I formally recognise that an established line of authority in this court has made it clear that there are three steps I must undertake in the determination of property entitlements of the parties to litigation of this kind.  However, it is not necessary for me to go into those matters of contribution, because I have before me the consent of all parties and their respective practitioners this day.  I am seized with sufficient information to be satisfied overall, having regard to the discrete circumstances of the particular facts before me, that the orders, proposed and consented to by all parties, are just and equitable. 

11. I also acknowledge that the provisions of section 75(2), that is, the prospective adjustments, are to be taken into account.  They do not apply automatically, but only to the extent when and if they are relevant.  They should be given appropriate weight and considered between the parties in coming to a just and equitable arrangement. 

12. It is unnecessary for me in the whole of the circumstances to scrutinise what percentage component any prospective adjustment was accorded between the parties, given that it was mediated before a barrister experienced in Family Law and debated by Mr O'Shannessy.  It is far better that parties come to a common consent arrangement than suffer the rigours and financial detriment of litigation in this court. 

13. I congratulate the parties on having the dignity and the commonsense in coming to this arrangement.  It is one that is reached at arm's length.  They have been through the court procedures.  As Mr Binnie said to me in the course of his submissions, it is a “practical adjustment”. 

14. In the circumstances, I propose to make the orders sought.  I have marked the minutes of consent orders Exhibit "A".  I make orders in terms of Exhibit “A”.  I direct solicitors for the wife to engross the orders. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  17 April 2008