Williams and Mason

[2008] FamCA 161

FAMILY COURT OF AUSTRALIA

WILLIAMS & MASON [2008] FamCA 161

FAMILY LAW – PROPERTY – Consent Orders – Not just and equitable pursuant to s 79(2) – Declined to make orders

Family Law Act 1975 (Cth)

APPLICANT: MR WILLIAMS

RESPONDENT: MS MASON

FILE NUMBER: MLC 580 of 2008

DATE DELIVERED: 5 MARCH 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 5 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR CRABTREE

SOLICITOR FOR THE APPLICANT: GIBSON & GIBSON

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

ORDERS

IT IS ORDERED:

1. THAT the application for approval of consent orders be dismissed.

IT IS NOTED:

A.       THAT otherwise there are no proceedings before the Court.

B.THAT the original of the intended minutes of consent orders is to remain upon the Court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 580 of 2008

MR WILLIAMS

Applicant

And

MS MASON

Respondent

REASONS FOR JUDGMENT

1. In the matter of Williams and Mason, file MLC 580 of 2008, I have before me an application for consent orders.  The husband is represented by Mr Crabtree, solicitor who appears as agent for the firm of solicitors Gibson and Gibson. The wife appears in person.

2. I have before me the consent orders.  Mr Crabtree has given a broad overview of the asset pool of approximately $1.4 million.  The primary asset in the equity in the home at N of $315,000.  That property is now registered in the joint names of the husband and wife.  Its market value is $440,000 and it is encumbered by a mortgage of $125,000. 

3. It is intended that the husband retain sole ownership by way of the wife transferring her equity on title in the home to his sole name.  Otherwise the husband has $115,000 or thereabouts in cash moneys invested, he already having paid to the wife the sum of $70,000.  They each have some furniture, chattels and personal possessions.  The husband has considerable superannuation entitlements, far greater than those of the wife. 

4. Interestingly, the parties work within the same business, earning approximately the same salary.  The one significant aspect of the case is that late in the eight‑year marriage the husband received an inheritance from his family, to which the wife makes no claim, and that sum is approximately $150,000, or thereabouts. 

5. As an overall assessment, Mr Crabtree says to me the division is approximately 90 per cent to the husband, 10 per cent to the wife.  There are no children of the marriage and I am told of no other special circumstances.  

6. The court can only make an order under section 79 of the Family Law Act 1985 if it fits the criteria of subsection (2).  That is, it must be just and equitable.  The approach of the court in determining a just and equitable settlement is to apply the provisions of section 79(4) as to contributions and otherwise, the relevant factors set forth in section 75(2) of the Act. 

7. In this case there are the factors of the husband's prior ownership of a property which he brought to the marriage and of his other then assets and the later inheritance.  I do understand that these are sought as consent orders.

8. All of those matters considered I do not consider an apportionment of the total net asset pool of approximately 90 per cent to the husband to be just and equitable so as to attract the imprimatur of the court. I am satisfied that the wife does have an understanding of what the asset pool is and the way it is being divided. I am satisfied that she has given a level of valid and informed consent. However, I decline to formally approve these orders, and therefore there will be no declaration under section 81 of the Family Law Act that the settlement is final.

9. That leaves the husband and wife the position of entering into a private agreement, however, they may be so advised, and living their lives accordingly.  I emphasise that there has been no section 79 determination of the property and financial interests before the court and I do not formally approve the consent orders.  To that extent, the application for approval of consent orders is formally dismissed.  I will remove any application before the court from the court and there will be no current proceedings outstanding or for hearing in this matter. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date: 13 March 2008