York and Carden

[2007] FamCA 509

FAMILY COURT OF AUSTRALIA

YORK & CARDEN [2007] FamCA 509

FAMILY LAW - PROPERTY – Consent Orders made following negotiation.

Family Law Act (1975) (as amended)

APPLICANT: Ms York

RESPONDENT: Mr Carden

FILE NUMBER: MLF 3144 of 2004

DATE DELIVERED: 19 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 19 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Brown SC

SOLICITOR FOR THE APPLICANT: Harvey Lawyers

COUNSEL FOR THE RESPONDENT: Mr P Hayes QC

SOLICITOR FOR THE RESPONDENT: Caroline Counsel Family Lawyers

Orders

1. That within 90 days of the date of these Orders ("settlement date") the Husband do all such acts and things and sign all necessary documents to transfer to the Wife, at her expense, all his right title and interest in the property situate at H more particularly described as Certificate of Title Volume … Folio … ("the former matrimonial home").

2. That on or before the settlement date the Wife do all such acts and things to discharge and refinance the National Australia Bank mortgage registered No … into her sole name and indemnify the Husband in relation to same.

3. That on or before the settlement date the Husband do all such acts and things and sign all necessary documents to transfer, at the Wife's expense, the 1998 SAAB motor vehicle registration number … .

4. That the furniture and chattels located at the former matrimonial home be retained by the Wife.

5. That at the Wife's request that he do so, the Husband do all such acts and things and sign all such documents as may be necessary to apply one half of the frequent flyer points in his name or possession at the time of separation into the Wife's name and otherwise retain all remaining frequent flyer points for his own use and benefit absolutely.

6. That the Husband pay to the Wife $1,050,000.00 ("the payment") within 90 days of the Orders herein ("the date").That the Husband retain for his own use and benefit absolutely the shares and any interest he may otherwise have in F Pty Ltd, the F Trust, S, the C Family Trust, the C Property Trust, SP Company and the F Pty Ltd Superannuation Fund.

7. That the Wife relinquish any interest that she may have in the following entities and trusts and do all such acts and things and sign all such documents at the expense of the Husband necessary to give effect to this Order:

   (a)       SP Company Pty Ltd (formerly B Pty Ltd);

   (b)       C Property Trust;

   (c)       C Family Trust.

8. That the Husband retain for his sole use and benefit to the exclusion of the Wife, his interest in the F Group and L Pty Ltd and any monies owing to him by Ms W.

9. That the Husband and Wife have equal shared care of the dog Socks.

10. That on or before the settlement date, the Husband do all such acts and things in order for the Wife to be released, at the expense of the Husband, from the guarantee signed by her in relation to the boat owned by SP Pty Ltd and indemnify her in relation to such guarantee from all claims, costs and damages howsoever incurred as a result of the said guarantee.

11. That in the event that the whole of the payment has not been made by the date, then the real property at V be forthwith sold and the proceeds of sale be applied:

    (a)firstly, to pay all costs, commissions and expenses of the sale;

    (b)secondly, so much as the payment as is then outstanding to the Wife together with interest thereon at the rate prescribed in the Family Law Rules;

    (c)the balance then remaining, if any, to the Husband.

12. That the Husband be restrained until payment in full to the Wife from encumbering or disposing or mortgaging the real property at V save for obtaining monies to pay the Wife her entitlements pursuant to these Orders.

13. That pending the payment in full of the Wife's entitlements pursuant to these Orders, the Husband continue to pay to the Wife and continue with the current arrangements for:

    (a)the provision of the SAAB motor vehicle and servicing including payment of petrol;

    (b)the provision of a mobile telephone and the costs of same;

    (c)the payment to the Wife of a gross salary and superannuation entitlements as have been paid to her to date.

14. That all prior Orders are hereby discharged insofar as they relate to the Husband and Wife.

15. That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:

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

    (b)monies standing to the credit of the parties are to become the property of the named account holder;

    (c)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

    (d)insurance policies remain the sole property of the owner named thereon;

    (e)each party be solely liable for an indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

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

16. That all Applications be otherwise dismissed and the proceedings removed from the Pending Cases List.

17. That the hearing in the Subpoena List scheduled to take place on 21 March 2007 be vacated.

THE COURT NOTES:

A.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 relationship between them and avoid further proceedings between them.

B.That the Wife undertakes that she will pay such costs as may be agreed in relation to the Subpoena to W Accountants and in default of agreement to be determined by this Honourable Court.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3144  of 2004

Ms York

Applicant

And

Mr Carden

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of defended cases.  It is a property application brought by the wife.  The wife is 43 years of age.  The husband is 38 years of age.  The parties commenced cohabitation in February 1992, having met in mid 1991.  They married on … February 1995 and, following unhappy differences between them, separated in November 2003.

2. I have had the advantage of reading excellent trial affidavits of evidence‑in‑chief filed by the parties and on their behalf.  I have had the advantage of reading reports and the very helpful Case Outline Documents setting out in narrative form the case relied upon by each of the parties. 

3. The matter was mentioned this morning and Mr Brown SC, appearing for the wife and Mr Hayes QC for the husband requested that it be stood down for discussion purposes.  It is of course far better to resolve these matters individually than to have a court-imposed order forced upon the parties at considerable expense after several days of litigation.  The parties have, through good commonsense and considerable dignity in my view, despite the difficulties of the past, settled the contested applications in an appropriate manner.

4. There are obligations on judges of this court to be satisfied that orders are just and equitable, notwithstanding that they are to be made by consent.  Such is the mandate of the Family Law Act 1975. I am familiar with all the factual matrix underpinning the settlement and in particular the relevant considerations pursuant to s 79(4)(a) to (d) of the Act. I am satisfied in all the circumstances and in the exercise of my discretion that the compromise is a just and proper settlement within the meaning of s 79(2) of the Family Law Act. 

5. I congratulate the parties on having the commonsense and dignity in coming to this resolution and wish them both the best in the future.  I also congratulate the professional advisors on having the skill in achieving a result that sits seamlessly, in my view, with that which is just and equitable in the circumstances before the Court.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  4 June 2007

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