Whist and Whist

[2007] FamCA 854

FAMILY COURT OF AUSTRALIA

WHIST & WHIST [2007] FamCA 854

FAMILY LAW - PROPERTY & CHILDREN – LAT proceedings settled between husband and wife with assistance of Independent Children’s Lawyer - Consent orders made - Explanation of adjustment

Family Law Act 1975 (as amended)

APPLICANT: Ms Whist

RESPONDENT: Mr Whist

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 365 of 2006

DATE DELIVERED: 3 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 3 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McCreadie

SOLICITOR FOR THE APPLICANT: Guthrie & Associates

COUNSEL FOR THE RESPONDENT: Ms Stewart

SOLICITOR FOR THE RESPONDENT: Richard Calley

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ellery

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Halliday & Associates

Orders

Property Orders

1. That the Wife pay to the Husband the sum of $120,000 (“the payment”) on or before the 3^rd day of October 2007 (“the date”).

2. That contemporaneously with the payment:

   (a)the Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Wife all his right, title and interest in the real property situate at and known as S in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … (“the real property”);

   (b)the Wife indemnify the Husband against all payments and liability pursuant to the mortgage registered No. … to Westpac Bank (“the mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind;

   (c)the Wife do all such acts and sign all such documents necessary to discharge in full the mortgage;

   (d)the Husband do all such things and sign all documents to withdraw at his expense all Caveats registered over the real property lodged for or on his behalf.

3. That in the event that the whole of the payment has not been made by the date then the Wife sign all documents and do all things necessary to transfer to the Husband the real property to be held on trust for sale and the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

   (a)first, to pay all costs, commissions and expenses of the said trust transfer and sale;

   (b)secondly, to discharge the mortgage and any other encumbrance affecting the real property;

   (c)thirdly, so much of the payment as is then outstanding together with interest thereon at the rate of 10.75% per centum per annum adjusted monthly from the date to the Husband; and

   (d)fourthly, the balance to the Wife.

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

   (a)the Wife have the sole right to occupy the real property and that during such right of occupation the Wife pay all instalments pursuant to the mortgage and all rates and taxes 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; and

   (c)neither party encumber the real property without the consent in writing of the other party.

5. That the Wife be liable for and indemnify the Husband with respect to any outstanding amounts owed to the real estate agent or any other agent involved in the sale or potential sale of the real property.

6. That the Husband’s nominee return the trailer to the Wife.

7. That the Wife make available for collection by the Husband’s nominee (but not the Husband) the chattels referred to in Annexure “A”.

8. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

   (a)each party be 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 furniture, personal possessions and like chattels in the matrimonial home are considered to be in the possession of the Wife;

   (b)money standing to the credit of the parties in any joint bank account is to become the property of the Husband and the Wife equally;

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

   (d)all insurance policies to become the sole property of the owner named thereon;

   (e)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;

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

9. That all extant applications be otherwise dismissed.

Children’s Orders

1. That all previous orders in relation to the child … born … April 1994 be and are hereby discharged.

2. That the Husband and the Wife have equal shared parental responsibility for the child.

3. That the child live with the Wife.

4. That each of the Husband and the Wife advise and keep the other advised of:

   (a)       the academic progress of the child (including the provision of school reports and school photographs);

   (b)       any significant health issues affecting the child; and

   (c)       any significant welfare issues affecting the child.

5. That the Husband be at liberty to forward cards, correspondence and gifts to the child and the Wife shall ensure she receives them.

6. That further issues with respect to the Husband spending time with and communicating with the child be reserved, however, nothing in this Order shall be taken to mean that the child is not able to see the Husband if she so decides herself.

7. That the Independent Child’s Lawyer be and is hereby discharged.

8. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

9. That a transcript of the submissions made this afternoon be placed on the Court file.

(19) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

ANNEXURE “A”

• Husband’s grandfather’s seed spreader

• Elk Fern on the tree in the driveway

• Any other personal items to husband.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Whist & Whist.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 365  of 2006

Ms Whist

Applicant

And

Mr Whist

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me under the umbrella of the Less Adversarial Trial procedures.  Ms McCreadie appears for the applicant wife, Ms Stewart for the respondent husband and Ms Elleray for the Independent Children's Lawyer.  This matter was last before me in January 2007 concerning the parties’ child, who was aged 13 years of age.  I have had the advantage of reading the court file and am familiar with the issues that were before me at that time. 

2. At the commencement of the proceedings this morning all counsel joined together asking that the matter be stood down for settlement discussion.  This, of course was a welcome approach to procedures such as this and given the professional representatives at the bar table, it was most appropriate to do so.  In the result, all issues concerning both child welfare and property have been adjusted.

3. I will deal firstly with the property issues.  By way of background, the husband is 47 years of age and the wife 51 years.  The parties commenced cohabitation in 1985 and married in March 1987.  Following unhappy differences between them they separated in October 2004.  The child relevant to the welfare proceedings is a daughter, who, as I said, is 13 years of age.  I have been helpfully advised by Ms McCreadie and Ms Stewart that the net pool of assets is approximately $285,000, comprised mainly of the former matrimonial home.  There are superannuation benefits applicable to both parties to the value of approximately $53,000.

4. It has been agreed that the wife will retain the former matrimonial home, that each of the parties would otherwise retain the assets presently in their own names and that the wife pay to the husband a lump sum payment of $120,000.  There was a modest valuation dispute between the parties. 

5. It is clear to me that provision has been made in the adjustment pursuant to section 75(2) of the Family Law Act 1975 (as amended). The agreement overall lies in the range of approximately 45 per cent/55 per cent, which is quite applicable and appropriate in cases of this nature, particularly given the requirements pursuant to section 75(2) of the Act.

6. There are obligations on judges of this court to be satisfied that orders are just and equitable, notwithstanding that they are made by consent.  Given the factual base that has been helpfully outlined by both counsel to me I am satisfied that the orders are just and equitable.  In those circumstances I will make the orders sought.

7. The other issue concerned the child.  I have been advantaged with a helpful background survey by Ms Stewart and what I propose to do is that, given her submissions to me and the current unfortunate circumstances that have fallen into play, I will order a transcript of the submissions this day and direct they be placed upon the court file.  Thus it is that in the event that the matter returns to court for whatever reason, any successor to me in these proceedings will be able to familiarise himself/herself with the events that have occurred this day.  I need not, in the circumstances, survey the further background other than to say that it clearly has been a very difficult one between them.

8. Ms Stewart then outlined to me events that occurred just yesterday where there has been an alleged disclosure of inappropriate touching by the father of the child.  She made it clear to me, and which I unreservedly accept, that the consent orders concerning the welfare issues were not to be construed by any measure to be an admission by the husband as contrary to self-interest.  It has been outlined to me by Ms Stewart that the child has become quite “embroiled in the dispute”, and it is recognised by the husband that given her age, she is entitled to express her own view.  That is true.  Children of that age can, whether for good or bad reasons, whether founded on fact or fiction, vote with their feet.

9. The husband also takes the view too that the consent orders would relieve any stresses upon the child arising from court proceedings.  He hopes that the child will be free to contact him and that with the passage of time she will do so thus enabling the restoration of their former loving relationship.  Ms Stewart said that the husband has entered into these orders in the hope that the parties will move forward into the future, use this day as a launching pad and not wallow in the unfortunate past.

10. I propose to make the orders, and I wish the parties the best in the future.  I point out yet again that it is only by good will and good common sense with large doses of dignity that problems of this nature can be solved. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  21 August 2007.