SAMPSON & IREDALE

[2015] FamCA 928

FAMILY COURT OF AUSTRALIA

SAMPSON & IREDALE [2015] FamCA 928

FAMILY LAW – PROPERTY SETTLEMENT – Application for consent orders made out of time – leave granted pursuant to s 44(6) of the Family Law Act 1975 (Cth) to proceed after the standard application period – whether it is just and equitable to make orders in the terms of the minute of consent orders – final orders made in terms of the consent application

Family Law Act 1975 (Cth)

APPLICANT: Ms Sampson

RESPONDENT: Mr Iredale

FILE NUMBER: MLC 7967 of 2015

DATE DELIVERED: 7 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 7 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Turner

SOLICITOR FOR THE APPLICANT: Armstrong Collins & DeLacy

COUNSEL FOR THE RESPONDENT: Ms Parker

SOLICITOR FOR THE RESPONDENT: Palmer Stevens & Rennick

Orders

BY THE COURT IT IS ORDERED:

1. Pursuant to Section 44(6) of the Family Law Act 1975 the Applicant is granted leave to make this Application for Consent Orders more than two years after the separation of the Applicant and the Respondent.

BY CONSENT IT IS ORDERED:

1. On or before 30 days from the date of these Orders (“the date”):

   (a)The Applicant pay to the Respondent the sum of $95,000.00 less the amount paid by the Applicant on behalf of the Respondent towards Paisley’s school trip to Italy.

   (b)The Respondent cause any Caveat lodged on the real property situate at and known as 111 Hallorans Lane, Kyneton on his behalf or claiming an interest through him to be withdrawn.

2. That unless otherwise specified in these Orders and save for the purposes of enforcing any moneys due 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 as at the date of these Orders.

   (b)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.

   (c)      Insurance policies remain the sole property of the owner named therein.

   (d)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.

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

AND 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.

B.The Applicant has paid $3,700.00 towards Paisley’s school trip to Italy and will produce a receipt for payment prior to the date.

C.The Applicant and the Respondent agree and acknowledge that the Respondent will pay the balance of the cost of Paisley’s school trip to Italy in 2015, estimate balance $2,884.00.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7967 of 2015

Ms Sampson

Applicant

And

Mr Iredale

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me today in a judicial duty list upon the application filed on 18 August 2015 by the parties seeking that final orders be made by consent disposing of the parties’ financial applications. 

2. The parties were in a de facto relationship, which spanned some 16 years, having commenced cohabitation in 1996 and separated in January 2013. The parties are out of the time in filing their application for final relief. Accordingly, an application has been made today for leave to apply after the end of the standard application period. That application is made pursuant to s 44(6) of the Family Law Act1975 (Cth).

3. The parties are some eight months out of time in filing their application. I am informed that they have been engaged in negotiations since 2014. It is submitted that there would be significant hardship to the parties were they to be prevented from making their application. They are tied together financially. They have two young children. They have resolved their issues and seek that orders be made so that those matters can be finalised and the parties can seamlessly move forward with their respective lives. Having regard to the background, particularly the potential hardship to the parties were they to be barred from the relief sought, and also having regard to the fact that it is a relatively short period that the parties are out of time, I am satisfied that it is appropriate to make an order pursuant to s 44(6) of the Family Law Act1975 (Cth) for leave for the application to be made out of time.

4. Turning then to the issues before the Court, the parties have, as I have already indicated, been in negotiation for some time.  In 2014, they effectively entered into a partial settlement of their financial affairs insofar as the former matrimonial home was transferred to the applicant and a payment made to the respondent.  The pool of assets is modest, in the order of $440,000.

1. The settlement that is proposed is a 55/45 split in favour of the applicant.  She will, pursuant to the proposed orders, retain the former matrimonial home in which she resides with the two children of the marriage. 

2. The most significant event that impacts upon the division of property is the unfortunate motor vehicle accident that the respondent was involved in in about 2003.  As a consequence of that accident, the respondent suffered an acquired brain injury.  He received a disability lump sum payment as a result of that, that payment being in the order of $298,000.  Those funds were applied by him towards a reduction of the mortgage on the matrimonial home, a family holiday and otherwise on reduction of family debt. 

3. As well as the lump sum payment, the respondent is in receipt of a disability pension.  He is also entitled to a Transport Accident Commission support package, which entitles him to ongoing assistance with his medical needs and entitles him to modification of any accommodation should he so require it.  The consequence of that accident is that much of the responsibility for both the physical care and the financial support of the children has fallen upon the applicant in the aftermath of the accident and the separation.  The respondent has had periods of hospitalisation, which have impacted upon him both in terms of his ability to retrain to work but also in terms of the level of support he has been able to provide the applicant in the care of the children.  The applicant is working on a part-time basis.  Her income from that employment is modest.  She is currently not receiving any child support. 

4. Having regard to that background, I am satisfied that the proposed settlement is just and equitable.  It appropriately reflects the parties’ contributions.  It also appropriately reflects the parties’ future needs.  I am satisfied that the proposed settlement is a result that would likely be achieved had the parties pursued the litigation pathway.  It is well within the range of likely outcomes.  Having regard to those matters, I will make orders in the terms of the minute of order that has been signed by the parties. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 October 2015.

Associate:  Alison Power

Date:  7 October 2015