Tank & Tank

[2009] FamCA 417

FAMILY COURT OF AUSTRALIA

TANK & TANK [2009] FamCA 417

FAMILY LAW – CONSENT ORDERS

APPLICANT: Mr Tank

RESPONDENT: Ms Tank

FILE NUMBER: DGC 735 of 2009

DATE DELIVERED: 21 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Portelli & Co

SOLICITOR FOR THE RESPONDENT: Xerri Rubinstein & Co

Orders by consent

1. That the husband pay to the Wife the sum of Ten Thousand Dollars ($10,000) (“the payment”) within forty-five (45) days of the date of these Orders (“the date”).

2. That contemporaneously with the payment:

   (a)the wife at her expense do all such acts and sign all such documents as may be required to remove any Caveat lodged by her or on her behalf claiming an interest in the real property owned by the husband and known as S property in the State of Victoria (“the real property”) and the husband retain sole ownership thereof.

   (b)the husband at his expense do all such acts and sign all such documents as may be required to remove any Caveat lodged by him or on his behalf over the wife’s interest in the property situate and known as W property in the State of Victoria and the wife retain sole ownership thereof.

   (c)the husband indemnify the wife against any liability pursuant to the mortgage registered over the real property in favour of Bankwest Limited and all rates and outgoings with respect to the real property and further do all such acts and sign all such documents as may be required to refinance the Bankwest Limited mortgage into the husband’s sole name;

   (d)the wife indemnify and keep the husband indemnified against any liability pursuant to the mortgage in favour of the Commonwealth Bank registered over the property situate and known as W property in the said State and in due course as soon as practicable do all such acts and sign all such documents as may be required to refinance the said mortgage into her sole name and further indemnify and keep the husband indemnified against all rates and outgoings with respect to the property at W.

3. That in default of the payment by the date, the real property be sold as soon as possible out of court (“the sale”) and the proceeds of the sale be applied in the following order:

   (a)to pay all costs, commissions and expenses of the sale;

   (b)to discharge the mortgage and any other encumbrance effecting the real property;

   (c)in payment of the sum of $10,000 together with interest at the rate of ten percent (10%) per annum adjusted monthly from the date to the wife;

   (d)the balance to the husband.

4. That pending the payment or completion of the sale:

   (a)the husband have the sole right to occupy the real property and during such right of occupation the husband pay all instalments pursuant to the mortgage and all rates and like apportionable outgoings of the real property as they fall due;

   (b)the parties hold their respective interests in the real property upon trust pursuant to these orders;

   (c)neither party encumber the real property without the consent in writing of the other party save and except that the husband shall be entitled to offer the real property as security for the purposes of raising the payment to be made to the wife pursuant to the provisions of this order.

   (d)that liberty be reserved to either party to apply with respect to the terms and conditions of and execution of the sale in necessary.

5. That unless otherwise specified in these orders and except for the purpose of enforcing the payment of any monies due under these or any subsequent orders:

   (a)each party be otherwise 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 (the chattels in the real property are considered to be in the possession of the husband and the chattels in the property at W, are deemed to be in the possession of the wife);

   (b)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;

   (c)all insurance policies are to become the sole property of the beneficiary 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)that the husband retain sole ownership of the Honda Civic motor vehicle registered no: … and the wife hereby foregoes any claim she has in respect to that vehicle.

   (f)that the wife retain sole ownership of the BMW motor vehicle registered no: … and the husband hereby foregoes any claim he has in respect to that vehicle.

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

6. That the application of the husband filed the 21^st of March 2009 be otherwise dismissed.

AND THE COURT NOTES:

That the parties intend that these orders shall as far as practicable finally determine the financial and other relationships between them and avoid further proceedings.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 735 of 2009

MR TANK

Applicant

And

MS TANK

Respondent

REASONS FOR JUDGMENT

1. This is a matter transferred to me in Chambers by a Registrar after the parties and their lawyers attended the Court and reached a compromise in respect of financial matters.

2. I have been asked to make these final orders.

3. There is some disagreement about the pool of assets for division but that is modest.  On the material, the parties have few assets.

4. I have read the file documents made available to me and whilst each party has a different approach to the assessment of their contributions, the difference is not large.

5. The parties were married in September 1993 and separated in March 2007.  The parties make no mention of any children of either of them.

6. The adjustment between the parties apparently which was agreed upon at a conciliation conference, apparently takes into account their respective contributions and there are no factors set out in s75(2) of the Family Law Act 1975 alleged by either to be relevant.

7. Both parties have been represented by lawyers who have prepared the documents before me and requested they be made.

8. In all of the circumstances, I am satisfied that these orders are just and equitable.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date:  21 May 2009