SENDAL & CURTIS

[2017] FamCA 1030

FAMILY COURT OF AUSTRALIA

SENDAL & CURTIS [2017] FamCA 1030

FAMILY LAW – PRACTICE AND PROCEDURE – De facto relationship – application for property orders filed outside the standard application period – leave granted pursuant to s 44(6) of the Family Law Act 1975 (Cth) – final property orders.

Family Law Act 1975 (Cth) ss 44(5), 44(6)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Sendal

RESPONDENT: Ms Curtis

FILE NUMBER: MLC 9014 of 2017

DATE DELIVERED: 9 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 9 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Morkos

SOLICITOR FOR THE APPLICANT: Aughtersons

THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: Mackinnon Jacobs Lawyers

Orders

IT IS ORDERED

1A.That leave be granted pursuant to Section 44 (6) of the Family Law Act 1975 to Mr Sendal (“the Applicant”) and Ms Curtis (“the Respondent”) to apply for and have Consent Orders regarding financial issues made after the end of the standard Application period, the parties having ended their de facto relationship on the 17th March 2015.

BY CONSENT IT IS ORDERED:

1. The net balance of the proceeds of funds held in trust by B Finance from the settlement of sale of the former residential property owned jointly by the parties, namely C Street, Suburb D Victoria to be released to the parties as follows:

   (i) 55 per cent to the Applicant, to be paid into the Aughtersons trust account;

   (ii) 45 per cent to the Respondent, to be paid into the Mackinnon Jacobs trust account.

2. The Applicant retain funds in the sum of $13,500.00 held in the ANZ Account No …73 following which the parties shall do all necessary acts and things to close the said account.  Should there be any shortfall of the sum of $13,500.00 arising from the Respondent’s utilisation of the said ANZ Account No …73, that shortfall shall be reimbursed to the Applicant from the Respondent’s entitlement pursuant to Order 1(ii).

3. That unless otherwise specified in these Orders, and except for the purpose of enforcing the payment of any money due under these Orders or any subsequent Orders:

   a)Each party will be solely entitled to the exclusion of the other, and each shall relinquish any right, title and interest that they may have in all items of personal use and adornment, and all other personal effects, property and chattels, including furniture and motor vehicles in the possession, custody and/or control of each respective party (including choses-in-action) to the intent that each respective party shall become the sole and absolute legal and beneficial owner of personal effects, property and chattels as aforesaid in their possession.

   b)All bank accounts and other financial accounts and investments (including shares) are deemed to be in the possession of the person whose name appears on the record of the bank or other financial institution, and each of the parties forego, relinquish and release the other from any claim that they may otherwise have to an interest in any bank account, other financial accounts, investments and shares presently registered in the name of the other party.  Subject Order 2 herein any monies standing to the credit of the parties in any other joint bank account shall be retained by the Respondent and the parties do all necessary acts and things to close all accounts in the parties’ joint names.

   c)All insurance policies remain the sole property of the owner named thereon;

   d)Each of the parties hereby foregoes any claim that they may otherwise have to any other superannuation benefits belonging to, and earned by the other.  Such superannuation entitlements are deemed to be in the possession of the person who is named as the worker, whose age or working position provides the conditions for payment out of such entitlement.

4. That each party must be solely liable for and indemnify the other against any liability or guarantee encumbering any item of property to which that party is entitled pursuant to these Orders.

5. That neither the Applicant nor the Respondent may incur in the name of the other any account or other liability and each of them must pay and discharge all accounts and other liabilities hereinafter incurred by either of them at all times and shall keep the other indemnified from all claims, actions, costs and other expenses in connection therewith.

6. Save as otherwise provided herein each of the parties release the other from any claim that they may otherwise have to an interest in ownership or possession from any real or personal property presently in the name of or in the possession of the other and from any debt, damages or any other sums due or alleged to be due by another party to that party.

7. That each party shall sign within seven (7) days of the same being presented to them all documentation reasonably required to give effect to the terms of these Orders.

8. That the provisions of these Orders be binding on the heirs, executors, personal representatives and administrators and assigns for each of the party.

AND THE COURT NOTES:

A.That the Orders herein are intended by the Applicant and the Respondent pursuant to Section 90ST of the Family Law Act 1975 to operate in relation to and in full satisfaction of all claims that they have or had or may have had for an alteration of property interest to their benefit, and as far as practicable, these Orders shall finally determine the financial relationship between the parties and avoid further proceedings between them. 

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 Sendal & Curtis 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 9014 of 2017

Mr Sendal

Applicant

And

Ms Curtis

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of Sendal & Curtis comes before the Court today in this Judicial Duty List upon the application for consent orders filed on behalf of the applicant on 1 September 2017.  That is an application seeking that orders be made by consent for an alteration of the parties’ property interests and is an application made out of time. 

2. The parties have been involved in a de facto relationship and separation having occurred between them in March 2017.  Accordingly, it is an application made approximately six months out of time.

3. The background to the proceedings is as follows. 

4. The applicant is Mr Sendal;  he is aged 28 years.  He has recently secured employment, having had a period of approximately two years of unemployment during this period since the parties’ separation. 

5. The respondent is Ms Curtis; she is aged 28 years.  She is a research officer and PhD student. 

6. The parties commenced cohabitation in 2012.  They separated in 2015.  They together, during the course of their relationship, acquired a property in Suburb D.  That was a jointly owned property.

7. Section 44(5) of the Family Law Act 1975 (Cth) (“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 the period of two years after the end of the de facto relationship; that is referred to as the standard application period.

8. 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 caused to the party or a child if leave were not granted.

9. The Court is required to consider the reasons for any delay in making an application, 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 seek orders by consent and seek leave of the Court to have those orders made.  Hardship is not simply a matter of financial hardship; hardship may also be the fact that parties own properties together, that they no longer live together and it is no longer appropriate that they own property together. 

10. That is the circumstance that presents itself in this matter.  The parties held a jointly owned property, which has now been sold.  The proceeds of sale are held on trust for the parties presently.  Each party seeks access to their entitlements from those sale proceeds.

11. As to the reasons for delay, the applicant has suffered a period of ill health and has not been in a position to pursue his application to finalise these matters.  He has been engaged in a course of intensive therapy due to his mental health issues.  I am satisfied that the parties have an appropriate and reasonable explanation for the delay in filing their application in this matter.  I am also satisfied that they would suffer hardship were leave not granted due to their position of having jointly held interests.  Accordingly, I grant leave for them to make application for alteration of their property interests outside the standard application period.

12. I have helpfully been provided with the background to their proposed property division.  Essentially what is sought is an adjustment that will see the proceeds of sale of the property in Suburb D divided on the basis that the applicant receive 55 per cent and the respondent receive 45 per cent.  I am satisfied that an adjustment in those terms appropriately takes into account the contributions made by each during the course of their relationship and also appropriately takes into account their respective future needs.  I am satisfied that the proposed settlement is just and equitable.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 November 2017.

Associate:

Date:  9 November 2017