Villeneuve and Harold

[2013] FamCA 1108

FAMILY COURT OF AUSTRALIA

VILLENEUVE & HAROLD [2013] FamCA 1108

FAMILY LAW – PROPERTY – Consent orders

APPLICANT: Mr Villeneuve

RESPONDENT: Ms Harold

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2827 of 2013

DATE DELIVERED: 18 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 18 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pellow

SOLICITOR FOR THE APPLICANT: Hicks Oakley Chessell Williams

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED

1A.That pursuant to s 44(6) OF the Family Law Act 1975 the applicant be granted leave to institute proceedings.

BY CONSENT IT IS ORDERED

1. That  the balance  proceeds of sale of the real property at B Street, Suburb C in the State of Victoria ("the Suburb C home") which were paid into the solicitors'  trust account of the firm of Tyler Tipping & Woods  on 4th April 2013 be applied as follows:

   a)First in payment of the loan to the Applicant's parents of $121,000;

   e)Secondly that the balance proceeds of sale be divided between the parties in equal shares.

2. That the Respondent be solely responsible for payment of the final instalment of her share as tenant in common of the Suburb C home in relation to the mortgage in account No: …due to Westpac Bank together with interest thereon, believed to be in the sum of $1,369.69, and indemnify and keep indemnified the Applicant in respect thereof.

3. That there be liberty reserved  to either party to apply  in relation to the terms and conditions and distribution of the balance proceeds of sale referred to in paragraph 1 hereof.

4. That each of the parties retain their respective motor vehicles and their superannuation entitlements.

5. That unless otherwise specified in these orders, and save for the purpose of enforcing any moneys due under these or any subsequent orders:

   a)Each party shall be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders;

   b)Any bank accounts shall be retained by the party whose name appears on the bank records thereof;

   c)Each party forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;

   d)All insurance policies are to remain the property of the party whose name appears on the account as the owner;

   e)Each party shall 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;

   f)Any joint tenancy of the parties in any real or personal property is hereby expressly severed.

6. That the solicitors for the Applicant, Mr Villeneuve, engross the orders providing three (3) clean copies by 13 January 2014.

IT IS DIRECTED:

1. That the Minutes of Consent Orders remain on the Court file.

THE COURT NOTES:

That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Villeneuve & Harold 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: DGC 2827 of 2013

Mr Villeneuve

Applicant

And

Ms Harold

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. In the matter of Villeneuve & Harold, I have before me this day an application pursuant to section 44(6) of the Family Law Act1975 for leave to commence proceedings out of time, the two year period since the parties separated having expired.  I have in support of that application heard submissions from the solicitor for the applicant, who has also sworn an affidavit which was filed on 4 October 2013 in support of the application for that leave. 

3. There is also a letter from the solicitors for the respondent dated 23 October 2013 supporting the application for leave for the institution of proceedings and also the application for consent orders to be made.  I will mark that letter with the letter A, and it shall remain on the court file as evidence of the consent of the respondent. 

4. Having heard submissions from the applicant’s solicitor and having had the opportunity of reading her affidavit, I am satisfied that it is appropriate in the circumstances of this case to grant such leave.  I am satisfied that there would be a substantial detriment and hardship to both parties if leave were not granted and they were not able to end their financial relationship. 

5. Accordingly I will grant leave for the commencement of the application out of time. 

6. I have heard detailed submissions from the applicant’s solicitor in support of the making of the final property orders.  I am informed that this is a three year relationship.  The principal asset of the relationship is a property which has now been sold.  The sale proceeds which total some $228,000 are now held on trust for the parties by the respondent’s solicitor.  The proposed orders make provision for the repayment of a loan to the applicant’s parents, and thereafter the sale proceeds are to be divided equally. 

7. I am informed that the proposed division reflects the contributions of each of the parties with respect to their property. 

8. I am satisfied, having heard submissions and having had the opportunity of reading both the application for consent orders which contains detailed financial information, that the orders proposed are just and equitable.  Accordingly I will make orders in the terms of the proposed minute.  They will remain on the court file and be marked with the letter B.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 18 December 2013.

Associate: 

Date:  18 December 2013