Winch and Winch

[2010] FamCA 299

FAMILY COURT OF AUSTRALIA

WINCH & WINCH [2010] FamCA 299

FAMILY LAW – PROPERTY – Interim Orders – s 79A property alteration – Where both parties seek to set aside the final consent orders made in 2006– Where the adult children of the marriage are involved in the proceedings

Family Law Act 1975 (Cth) ss 79, 79A.

APPLICANT: Mr Winch (with the Public Trustee of Queensland as Case Guardian)

RESPONDENT: Ms Winch

INTERVENOR: J Winch

FILE NUMBER: BRC 11433 of 2009

DATE DELIVERED: 24 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 24 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Skinner of Counsel

THE RESPONDENT: In person via video-link

THE INTERVENOR In person

Orders

IT IS ORDERED THAT:

1. The application for settlement of property be listed for trial for one (1) day before the Honourable Justice Murphy at 10.00 am on 20 May 2010 at the Brisbane Registry of the Family Court.

2. The Public Trustee of Queensland on behalf of the Husband file and serve a further amended application by 4.00 pm on 1 April 2010 setting out the orders sought by the Public Trustee of Queensland on behalf of the Husband pursuant to section 79 of the Family Law Act 1975.

3. The Public Trustee of Queensland on behalf of the Husband join Ms R and Mr J Winch as respondents to that application by 4.00 pm on 1 April 2010.

4. The Public Trustee of Queensland on behalf of the Husband file and serve an affidavit in support of the orders sought pursuant to section 79 of the Family Law Act 1975 detailing those matters in respect of which findings must be made by the Court to sustain the section 79 orders sought.

5. Leave given to the Public Trustee of Queensland on behalf of the Husband to incorporate into that affidavit such parts of other affidavits filed by it upon which they seek to rely.

6. Each of the Wife, Ms R, and Mr J Winch file and serve any response setting out the orders sought by them in the section 79 proceedings by 4.00 pm on 22 April 2010.

7. Each of the Wife, Ms R and Mr J Winch file and serve an affidavit in support of the orders sought by them by 4.00 pm on 7 May 2010.

8. A compliance check be conducted by a Registrar of this Court on a date to be fixed prior to 4.00 pm on 12 May 2010, with leave given to the parties to appear by telephone.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11433 of 2009

MR WINCH

(With the Public Trustee of Queensland as Case Guardian)

Applicant Husband

And

MS WINCH

Respondent Wife

And

J WINCH

Intervenor Son

EX TEMPORE

REASONS FOR JUDGMENT

1. On 14 December 2009, the Public Trustee of Queensland, who now acts for the husband pursuant to orders made by the Guardianship and Administration Tribunal of Queensland, brought an application invoking s 79A of the Act.

2. The application pertains to orders made by consent on 12 January 2006, effecting a property division between two elderly people after some 50 years of marriage.  Those consent orders provided, in broad terms, that the wife transfer to the husband and J Winch (a son of the parties) “in equal shares” her interest in a property situated at M.

3. It seems that that transfer was effected. The title search in respect of the property reveals that it is registered in the names of the husband and Mr J Winch “as joint tenants”. 

4. The consent orders, and this current application, occur in the midst of significant family dispute involving the three adult children of the parties and the parties themselves. 

5. The intricacies of that internecine dispute need not be traversed for present purposes.  It is sufficient to say, for present purposes, that Mrs Winch joins with the public trustee in seeking to set aside the orders made on 12 January 2006.

6. Section 79A(1A) provides that:

   A court may, on application by a person affected by an order made by a court under s 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under s 79 in substitution for the order so set aside.

7. Whilst it is plain on the material before me that Mr J Winch has an interest in property the subject of the consent orders, and property which, if the relevant transaction is set aside, will be the subject of s 79 litigation, he was not a party to proceedings that resulted in the orders made on 12 January 2006. Nor, obviously, was he a party to those orders.

8. Accordingly, I am confronted with a situation where each of the parties to this very lengthy marriage who were parties to the proceedings in which the consent orders were made between them, seek to set aside the order by consent.

9. There is, on the face of the material before me, no vitiating element in respect of either party’s consent.  Indeed, Mr Winch, who was present during the current proceedings, was at pains to point out that earlier psychiatric evidence before this court indicated that the wife is of full capacity. 

10. She appears for herself this morning and is assisted by her daughter, and it seems to me that, as at today, she has requisite legal capacity, and no suggestion is made to the contrary. 

11. Accordingly, the position is that each of the parties to the proceedings in which the order was made seek to have that order set aside, and are in agreement about that occurring. 

12. It seems, on the material before me, that it is highly likely that the husband, through his guardian the Public Trustee, and the wife, will join in seeking the same orders pursuant to s 79 in light of the fact that no orders in respect of that section currently pertain to the property.

13. But in those proceedings in that respect, the orders mooted by each of the parties plainly affect a property in which Mr J Winch has a claimed interest.  Furthermore, another adult child of the parties’ relationship makes a claim, not yet properly particularised at least, as far as I’m concerned for the payment of money to her, which such sum formed part of the orders made by consent on 12 January 2006.

14. Accordingly, in the s 79 proceedings which are now invoked by reason of an Amended Initiating Application, filed by the Public Trustee on behalf of the husband on 23 March 2010, it is clear that Mr J Winch and the parties’ adult child Ms R each need to be parties.

15. With that in mind, I propose to make directions so as to afford each of those parties the opportunity to become parties to the section 79 proceedings which are now live, with a view to this matter being heard and determined by me in a one day trial on 20 May 2010.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  21 April 2010