Yardley and Yardley

[2007] FamCA 64

FAMILY COURT OF AUSTRALIA

YARDLEY & YARDLEY [2007] FamCA 64

FAMILY LAW - FINAL PROPERTY CONSENT ORDERS - S.79A AND S.90A

Family Law Act 1975 (Cth)

APPLICANT: MS YARDLEY

RESPONDENT: MR YARDLEY

FILE NUMBER: MLF 1440 of 2005

DATE DELIVERED: 13 FEBRUARY 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 13 FEBRUARY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: DR FOREMAN

SOLICITOR FOR THE APPLICANT: WESTERN LAW WORKSHOP

COUNSEL FOR THE RESPONDENT: IN PERSON

Orders

1. THAT within sixty (60) days of this date the husband pay to the wife the sum of $22,500.00 (“the payment”).

2. THAT in the event that the husband defaults in the payment within the sixty day period then the real property situate at S be then forthwith sold and:

   (a)the husband have the conduct of the sale but he must keep the wife, or her solicitors, fully informed at all times and specifically as to the terms and conditions of sale when a contract has been signed;

   (b)the proper and reasonable costs, expenses and commission of sale be paid on settlement;

   (c)the mortgage be then discharged;

   (d)the wife then is to receive the payment together with any interest as and from the date of these Orders at a penalty interest rate prescribed for in the Family Law Rules; and

   (e)the balance then to be retained by the husband.

3. THAT otherwise each of the husband and wife retain all of their assets, chattels, personal possessions, investments and their superannuation and related work benefits.

4. THAT all extant applications, and specifically the wife’s further amended application for final orders filed 12 October 2006 be dismissed and the proceedings be removed from the list of cases awaiting hearing.

5. THAT each of the parties be responsible for payment of their legal costs and expenses of and incidental to this case.

6. THAT the Subpoenas Clerk, Melbourne Registry Family Court forthwith return to the person or organisation all documents, records and files as has been produced to this Court.

7. THAT liberty to apply is reserved to the parties only as to the terms and conditions of any required sale, in default, and then upon proper application and documents served and filed.

8. THAT pending payment to the wife of all moneys and interest (if any) pursuant to these Orders the husband be restrained from selling the real property at S, save for the purposes of compliance with these Orders.

9. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to both parties.

10. THAT pursuant to s.79A(1) of the Family Law Act 1975 each of the husband and wife consent to the variation or setting aside of the orders pronounced by consent on 27 April 2005 so as to give full force and validity to these Orders made this day.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

IT IS NOTED

A.THAT pursuant to s.81 of the Family Law Act 1975 each of the parties intend, as far as is practicable, that these Orders will resolve all property and financial proceedings and avoid any further hearing.

B.THAT both parties have had advice and intend that these Orders are final and each of them have indicated they will not be instituting any other proceedings, save enforcement if and when required.

C.THAT I direct that the executed minutes of consent orders remain upon the Court file but that each of the husband and wife understand and accept that these more substantially drafted orders were prepared in their presence and that of the wife’s legal practitioners by the Court to more fully state their intended settlement.

D.THAT the date upon which the payment is due is 13 April 2007.

E.THAT these Orders have been forwarded to the husband and solicitors for the wife prior to final engrossment and execution by the Court.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1440 of 2005

MS YARDLEY

Applicant

And

MR YARDLEY

Respondent

REASONS FOR JUDGMENT

1. The matter of Yardley is before the court in a defended hearing list.  The husband appears in person.  Dr Foreman of counsel appears for the wife who is at court, is her the instructing solicitor in the case.  The short history of this matter is that orders were made by consent on 27 April 2005, after three sessions of mediation which were altogether out of court.  There was also a binding financial agreement entered into by the parties in respect of a split of superannuation.

2. Pursuant to those previous court orders the husband retained the former matrimonial home at S and the wife was paid and received $50,000 together with a division of superannuation whereby $55,000 was assigned to her name within the Health Superannuation Fund.  At the time the orders were made the three children of the marriage A now aged 17 years, L now aged 16 years and N approaching 15 years of age, continued to reside with the husband.

3. That circumstance was short lived and A in July of 2005 and N in August of 2005 returned to live with their mother.  Whilst these events occurred some three or four months after the formal making of the orders by consent by a Registrar of this court, it is significant that the first change in residence, that is A, occurred within one month of the wife actually vacating the S home in favour of the husband.  The issues before the court related to applications filed on behalf of the wife and a subsequently amended application of 12 October 2006 seeking to set aside the orders of the court and also the binding financial agreement and thereafter seeking a rehearing of all property and financial issues.

4. Those applications were founded upon section 79A(1)(d) and section 90K(1)(d) of the Family Law Act 1975. The applications were opposed by the husband. He sought orders seeking their dismissal and otherwise retaining the financial circumstances brought about by the orders and agreement of 27 April 2005. I have carefully read the affidavit material of both parties detailing the financial events and other issues in their life post-the orders. In simple terms the wife received the $50,000 cash and used those moneys to purchase a small one bedroom unit in W. Subsequently that property was sold, the net result being that instead of having $50,000 the wife had almost $21,000 remaining of those moneys.

5. Subsequently it would seem that either the payment of legal fees or other expenses had further reduced the wife's available moneys.  The significant change as I touched upon earlier, was when the eldest and youngest child returned to live with the mother but the other child, L, remained living with his father.  I am otherwise aware of the specific issues, of and related to the three children, and in particular N’s special health needs.  The husband does pay child support and on his material has never missed a payment.

6. Both parties are in employment.  The husband remains in his responsible position with the T City Council earning a good salary plus superannuation.  The wife is a receptionist at a leading firm of solicitors and now resides in rented accommodation with those two of the three children.  The matrimonial home has an agreed value of $365,000.  The mortgage is $265,000 as the husband had increased that mortgage by $50,000 to secure the earlier payment made to the wife.  He is solely responsible for the mortgage debt.  Otherwise the assets and liabilities of this case comprised furniture, chattels and a modest investment sum and the liabilities largely legal expenses or credit card debts.

7. The wife's application as framed would have necessitated the sale of the home and there would have been real estate agent expenses and no doubt other expenses which would have totalled certainly $10,000 or thereabouts.  The current superannuation of the parties must be understood in the context that a superannuation split has occurred and the wife has had the benefit of the $55,000 superannuation sum, in addition to the $50,000 cash sum paid to her.  The husband through his employment has continued to make superannuation contributions and his fund, or indeed his various funds, have grown.  The wife is also making superannuation contributions through her employment.

8. The case presented a number of issues which the parties have dealt with in their submissions and which touched upon necessity for the court to examine the evidence and make findings as to whether or not there were indeed exceptional circumstances, or the other circumstances required by section 90K of the Act.  Thereafter issues of hardship and the whole issue of the exercise of court discretion was to be a live issue.  At the outset of this case I directed the attention of the parties and the wife's legal advisers to the actual available pool of assets and requested that some common sense, pragmatic and commercial approach be considered.

9. I allowed the matter to be stood down for a short period and common sense has now prevailed.  I am provided with minutes of consent orders the effect of which is for the husband within 60 days to pay to the wife $22,500, otherwise the husband retains the home and its equity.  The intention is that all parties otherwise retain their personal assets, moneys, investments and superannuation and all work related benefits subject to the $22,500 additional payment.  In summary that means therefore that the husband retains the home and its very considerable mortgage debt.

10. The wife retains the $50,000 previous paid plus the prior superannuation split of $55,000 plus now $22,500.  All parties are responsible for their own costs of legal advice and appearance fees of and incidental to these proceedings.  In the context of this case I will make a declaration pursuant to section 79(2) of the Act, that this brings about a just and equitable settlement.  My intention and I am satisfied the intention of both parties is to achieve absolute finality.  Certainly at the time the earlier orders were entered into, both parties must have understood they were final. 

11. The issues were raised by the wife and responded to by the husband thereafter because of the events that I have outlined. These orders now achieve finality and I will at the request of the parties endorse the orders with an appropriate section 81 notation in lieu of what the parties had agreed, that is that the wife would not make any further property proceedings under the Family Law Act. I clearly understand that intention of the parties and the wife's commitment not to make any further proceedings. I will dismiss all current applications and I will endorse the orders with the appropriate section 81 notation whilst clearly highlighting in these brief extempore reasons that the parties intend that this be the end of any court proceeding, of or incidental to a financial issue, save for any enforcement of these orders that might properly arise.

12. I will have these reasons transcribed, placed upon the court file and made available to the parties. 

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

………………………………………………………..
Associate: 
Date: 15 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as YARDLEY & YARDLEY