Sanders and Sanders

[2007] FamCA 1592

FAMILY COURT OF AUSTRALIA

SANDERS & SANDERS [2007] FamCA 1592

FAMILY LAW – PROPERTY – Consent Orders made in circumstances where the wife raised serious issues of non disclosure – Discussion between counsel resolved all issues to the satisfaction of the parties, and the court – Obligation on judges to be satisfied orders are just and equitable notwithstanding they are made by consent 

Family Law Act 1975 (Cth)

APPLICANT: Ms Sanders

RESPONDENT: Mr Sanders

FILE NUMBER: MLC 1222 of 2007

DATE DELIVERED: 21 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 21 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Watson & McLeod

COUNSEL FOR THE RESPONDENT: Mr Dickson

SOLICITOR FOR THE RESPONDENT: Ryan Maloney Anderson

Orders

1. That on or before 20 December 2007 (“the date”) the Husband:

   (a)Pay to the Wife the sum of $100,000.00 (“the payment”); and

   (b)Do all things to transfer to the Wife at her expense the Honda CRV motor vehicle.

2. That contemporaneously with the payment;

   (a)The Wife do all things and sign all documents to transfer to the Husband at his expense all her right title and interest in the property at …, E (“the home”) and the water entitlements free from encumbrance;

   (b)In relation to M Pty Ltd the Wife:

   (i)Transfer to the Husband any shares held by her;

   (ii)Resign any office held;

   (iii)Assign to the Husband any interest or entitlement held by her.

   (c)The Husband deliver to the Wife the items in Schedule A.

3. The Husband indemnify the Wife in relation to:

   (a)Any liability to his father; and

   (b)Any liability of, or arising from the Wife’s involvement in, M Pty Ltd.

4. That in the event the payment is not made by the date, the home be sold and the proceeds applied:

   (a)First, to pay costs of sale;

   (b)Second, so much of the payment as is outstanding (together with interest at 11.5% per annum until paid) to the Wife;

   (c)The balance to the Husband.

5. That unless otherwise specified in these Orders:

   (a)Each party retain all assets in their respective possession (the plant and equipment, BMW and ute being deemed to be in the Husband’s possession);

   (b)Each party be liable for any liability encumbering any asset being retained by that party;

   (c)Each party retain their superannuation entitlements;

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

7. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

NOTATION

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

SCHEDULE A

Buffet

The child A’s bed head, books, toys, magazines

Prints

Blankets given by my mother and grandmother

lawn mower

wheelbarrow, gardening tools

2 glory boxes

children’s christening gowns

cot, bassinet

fridge, deep freeze

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLC 1222 of 2007

MS SANDERS  

Applicant

And

MR SANDERS  

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the regional sittings of the Family Court of Australia at Mildura commenced by way of a Form 1 Application filed by the wife on 6 February 2007 in which she seeks a settlement of property.  A Form 1A Response was filed by the husband on 2 March 2007.

2. By way of background, the wife was born in September 1967.  She is 40 years of age and is a public servant by occupation.  The husband was born in November 1960.  He is almost 47 years of age and is self‑employed in a business known as M Pty Ltd. 

3. The parties married in October 1983 and following unhappy differences between them, separated in October 2006.  Theirs was a union of some 23 years.  There are two children born of their marriage:  D who was born in April 1992 who is 15 years of age and attends S School.  It appears that he spends time with both parents on a basically shared arrangement.  There is a further child, A who was born in October 1988.  She is 19 years of age and is employed. 

4. I have read the affidavit material of the parties and the Form 13 Financial Statements of each of them.  When I read the documents, I was concerned as to a number of issues as to whether or not there had been full and frank disclosure made by the husband concerning the business, M Pty Ltd.  My concern was fuelled by what I regard, on the face of it, to be an utterly inadequate Form 13 Financial Statement which appeared to disclose very little at all.  The issues raised by the wife were, on first reading, serious matters for consideration. 

5. This matter has been in the list of the entire regional sittings with Mr Williams appearing for the Applicant wife and Mr Dickson for the Respondent husband.  I am satisfied from the very careful submissions from each of Mr Williams and Mr Dickson that there has now been full arm's length discussion and negotiation and that Mr Williams has been both careful in his scrutiny and analysis of the husband's financial situation in finally advising on the terms of settlement agreed to between the parties.  I commend Mr Williams for his industry.  He has certainly plugged, what I regarded in my initial reading, as significant gaps to be considered.  I am satisfied from what Mr Williams had to say that both parties have adopted a careful and pragmatic approach to the settlement and carefully assessed the risk factors.

6. In all of the circumstances, I propose to approve the orders.  I make it clear that there are obligations on judges of this court to be satisfied orders are just and equitable, notwithstanding they are made by consent.  Such is the mandate of the Family Law Act 1975 itself.  I am satisfied that in arriving at the pool of assets both counsel have given careful consideration to an establishment of that pool and have saved the parties considerable anxiety and indeed legal expense in arriving at this sensible adjustment. 

7. I congratulate the parties on having the ability to enter into this arrangement and counsel for effecting it.  I mark the consent orders Exhibit "A".  I make orders in terms of Exhibit “A” and direct solicitors for the applicant wife to engross the orders and I remove the proceedings from the Active Pending Cases List.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 17 January 2008