Timothy and Timothy

[2008] FamCA 661

FAMILY COURT OF AUSTRALIA

TIMOTHY & TIMOTHY [2008] FamCA 661

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable

Family Law Act 1975 (Cth)

APPLICANT: MR TIMOTHY

RESPONDENT: MS TIMOTHY

FILE NUMBER: MLC 2917 of 2008

DATE DELIVERED: 2 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D. Crabtree

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr P. Grice

SOLICITOR FOR THE RESPONDENT: Grice and Grice

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the husband engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That all outstanding proceedings between the parties are otherwise dismissed and all proceedings removed from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2917 of 2008

MR TIMOTHY

Applicant

And

MS TIMOTHY

Respondent

REASONS FOR JUDGMENT  

1. This is an application in the duty list which was commenced by Mr and Mrs Timothy filing an application for consent orders on 2 April 2008.  For reasons which are not entirely clear to me and, in fact, do not matter, a registrar declined to make the orders and sent a requisition.  The parties then requested that the matter be adjourned to open court for consideration as to when the orders should be made.

2. The background of the matter is relatively simple.  The husband is aged 46 years.  He is a manager whose income is about $100,000 per annum.  The wife is also aged 46 years.  She earns substantially less than that working as a part-time receptionist, and is otherwise occupied in home duties.  Both parties live in K.  They were in a relationship of 23 years.  They have not yet divorced.  There are two children aged 17 years and 14 and a half years of age respectively, both of whom live with the wife, and the husband pays child support which is noted on the minute that the parties have signed.  The minute is slightly different from the reality, but in fact it does not matter, because the husband is paying about $3000 per month.

3. Each party has a motor vehicle.  The facts indicate that there is not much that is unusual about their background.  If the case was to be determined as a defended hearing, the first step in the four-step process would be to determine the pool.  In this case there is common ground that, leaving aside chattels, the pool is about $590,000 and there is some superannuation.  The parties have agreed to a division of the cash in the bank, which is about $500,000 as to 60 per cent to the wife and 40 per cent to the husband.  In addition to the cash, there is some superannuation.  The husband's significant superannuation is a pension which is in two funds, and when he gets to 65 years of age he will get something like $35,000 per annum.  I note that he is currently 46 years of age, so he has a long way to go.  The wife has a fund in the United Kingdom which was initially funded by her father.  At 60 years of age she will get about $6000 per annum.  She also - at 46 years of age - has a long way to go.

4. It seems to me that the superannuation in this case, if the matter had proceeded as a trial, would in reality have only been dealt with as a s 75(2) factor. The pool, therefore, that I am dealing with is, in reality, the cash that the parties have agreed to divide up. I am told that there is no significant argument in relation to contribution, and it is probably hard to see that there could be with a pool that size and a 23-year relationship. The parties have obviously taken into account the matters set out in s 75(2) of the Family Law Act1975 (Cth), having regard to the age of the children, the superannuation, and the fact that there is a disparity of their earning capacity.

5. The fourth step in the four-step process is for the Court to ultimately decide that the division in the order is just and equitable.  It is not the percentage that must be just inequitable, but the underlying value.  This case has avoided the tortuous path of litigation and saved the parties a substantial amount of money.  There is a strong ring of commercial reality about it, and in the circumstances I do not find anything unusual about the outcome that the parties have reached agreement upon.  In the circumstances, I say that the outcome for these parties is just and equitable.

6. In the matter of Timothy, I will make final orders in the terms of minutes, which I will mark as Exhibit A.  I will remove the minute from the formal application for consent orders and I will mark that as the Exhibit A.  I will direct that that remain on the court file.

7. As a matter of formality I will make orders also that all outstanding proceedings between the parties are otherwise dismissed.  All proceedings are removed from the list of cases awaiting a hearing.

I certify that the preceding Seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: …

Date:  10 July 2008