SHETLAND & REED

[2015] FamCA 929

FAMILY COURT OF AUSTRALIA

SHETLAND & REED [2015] FamCA 929

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 Shetland

RESPONDENT: Mr Reed

FILE NUMBER: MLC 7480 of 2015

DATE DELIVERED: 6 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 6 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pearson

SOLICITOR FOR THE APPLICANT: Aughtersons

THE RESPONDENT: In person via telephone link

Orders

IT IS ORDERED BY THE COURT:

1. That leave be granted pursuant to Section 44(6) of the Family Law Act 1975 to Ms Shetland (“the Applicant”) and Mr Reed (“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 in June 2012.

2. THAT BY CONSENT there be Orders in accordance with paragraphs 1 – 8 of the Minutes of Consent marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such Minutes remain upon the Court file.

3. That the Applicant’s solicitor engross the attached Minutes of Consent within seven (7) days.

BY CONSENT IT IS ORDERED:

1. That:

   (a)within thirty (30) days of the date of these Orders (“the date”) the Applicant pay to the Respondent the sum of Thirty thousand dollars ($30,000.00) from the Applicant’s NAB i Saver Account No. ending in … (“the payment”).

   (b)this is an Order to which Section 77A of the Family Law Act applies and that the sum of Twenty thousand dollars ($20,000.00) pursuant to Order 2(a) is attributable to the provision of spousal maintenance for the Respondent.

   (2)That contemporaneously with the payment pursuant to Order 2:

   (a)the parties execute all such documents and give all necessary consents as may be required to enable the Applicant to transfer to the Respondent absolutely (at the Respondent’s expense) the whole of the Applicant’s right, title and interest in the unencumbered fee simple in the parties’ home of the relationship situate at and known as B Street, Suburb C in Victoria and being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the home”);

   (b)The parties do all necessary things and provide all necessary consents to have the Certificate of Title to the home released to the Respondent including obtaining a full discharge of any encumbrance registered on the said Certificate of Title (if any); and

   (c)The Respondent must at all times indemnify the Applicant against all rates, taxes and insurances, past, present and future and all other like apportionable outgoings and liabilities related to, associated with or arising out of the ownership of the home.

2. That unless otherwise specified in these Orders and save for the purposes of enforcing the payment of any monies due under these Orders or any subsequent Orders:

   (a)Each party 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 the 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.  It is deemed that at the date of these Orders the parties have distributed between them household goods and chattels by mutual agreement;

   (b)All bank accounts and other financial accounts and investments 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 account and investments presently registered in the name of the other party. Should any joint accounts exist as at the date of these Order, the parties will do all such acts and things necessary to withdraw any funds from any such joint accounts, if any, and after disbursing the funds equally between the parties, the parties will do all such acts and things necessary to close any such accounts;

   (c)All insurance policies remain the sole property of the owner named thereof; and

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

3. 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.

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

5. 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 in any real or personal property presently in the name of or in the possession of the other and for any debt, damages or other sums due or alleged to be due by another party to that party.

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

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

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 any alternation of property interest to their benefit and as far as practicable these Orders shall finally determine the financial relationships between the parties and avoid further proceedings between them.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shetland & Reed 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 7480 of 2015

Ms Shetland

Applicant

And

Mr Reed

Respondent

REASONS FOR JUDGMENT

1. The matter of Shetland & Reed comes before me today in a judicial duty list. The application that is before me is an application for consent orders filed 10 August 2015. The parties have negotiated a settlement of their financial affairs and come to Court today asking that I make orders in the terms of these consent orders signed by them. Prior to considering that application I must first consider the application made by the parties for leave to apply after the end of the standard application period, that leave being required pursuant to s 44(6) of the Family Law Act 1975 (Cth).

2. The background to the application is as follows.  The parties commenced cohabitation in May 1975 and separated in June 2012.  Theirs is a relationship that spans some 37 years. 

3. The applicant is aged 66 years and the respondent is almost 66 years.  Both parties are in receipt of pensions.  The applicant is on a carer’s pension and the respondent an aged pension. 

4. There are no children of their relationship. 

5. I have been informed that both parties worked during the course of their relationship and that their interests today reflect their efforts through the course of their 37 year relationship.

6. The pool of assets comprises a property at Suburb C, which has an agreed value of approximately $400,000 and superannuation held by the applicant in the order of approximately $265,000. 

7. The parties in making their application are approximately 12 months out of time.  It is submitted on their behalf that were I not to make orders as sought by them, there would be a significant hardship to them.  They have a jointly owned property and they wish now to separate their financial affairs and move forward with life.  The delay is explained in part as a result of each of the parties being unaware of the requirement that they file their application within a specified time period.  Further, I am informed that the applicant has in recent times suffered ill health, including the requirement of a hip replacement and this has created a circumstance where she has not been in a position to make her application within time.

8. I am satisfied that this is a matter appropriate for the granting of leave pursuant to s 44(6) having regard to those circumstances. The delay is not of significant duration. There are reasonable and appropriate explanations for the delay and I am satisfied that it would cause significant hardship to these parties were they to be excluded from the relief provided under the Family Law Act1975 (Cth).

9. ORDERS DELIVEREDI am asked to make orders which will provide for the respondent to retain the former matrimonial home and for there to be a payment to him.  The adjustment pursuant to the proposed orders is a 60/40 adjustment.  That reflects the needs of the respondent, and it also takes into account the inheritance to be received by the applicant in the next few years.  I am satisfied that the proposed orders are just and equitable.  I am satisfied that the proposed settlement is in the range of outcomes likely to be achieved were the parties to press their applications for relief in this court. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 6 October 2015.

Associate: 

Date:  6 October 2015