Leader and Martin-Leader

[2010] FamCA 236

FAMILY COURT OF AUSTRALIA

LEADER & MARTIN-LEADER [2010] FamCA 236

FAMILY LAW – PROPERTY SETTLEMENT – consent orders – whether orders are just and equitable – consideration of the history of the matter – orders made

Family Law Act 1975 (Cth) s 79

APPLICANT: Ms Martin-Leader

RESPONDENT: Mr Leader

FILE NUMBER: ADF 6300 of 1993

DATE DELIVERED: 2 March 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 2 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

SOLICITOR FOR THE APPLICANT: Howe Martin & Associates

COUNSEL FOR THE RESPONDENT: Mr Livesey, QC

SOLICITOR FOR THE RESPONDENT: Allen Burtt Legal Associates

Orders

1. By consent I make orders in terms of the minutes this day signed by me.

2. Remove all matters from the pending list SAVE AND EXCEPT the other respondents’ costs.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 6300 of 1993

MS MARTIN-LEADER

Applicant

And

MR LEADER

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I am aware of the intricacies of this matter, which has been outstanding before the Court for many years. The order that I am being asked to make is one which is signed by the parties after they have had the benefit of what I was told to be private negotiations and the approval of experienced solicitor and counsel in this jurisdiction. The Court is required when making an order by consent, pursuant to section 79, to be satisfied that the order is just and equitable in all of the circumstances. I have heard from both counsel that they are not requesting that I consider this matter on the usual basis of attributing to the order various percentages to be applied for the amounts that would be received by both the husband and the wife. I am being asked to take into account the particular circumstances of this litigation and the arrangements that have been made by the parties from time to time.

2. There are already 115 documents on file, many of which relate to the question of identification of the interests of each of the parties in various assets and entities.  The exercise of preparing a simple balance sheet showing the assets, liabilities, financial resources and financial benefits of each of the parties has been attempted but not concluded. 

3. I have taken into account the uncertainties that might have arisen when the matter proceeded to a conclusion by way of trial, in particular in relation to the valuations of the various assets owned by some of the entities and the possible interests of the husband and wife in other interests, being family trusts and businesses.

4. I am aware of the background of the matter and the potential size of the assets and liabilities to be brought into account. I also take into account that it is conceded that if a percentage calculation were undertaken, the wife would not be receiving what would normally be considered a substantial figure based upon the usual practices.  However, I also take into account in this matter the family background and how the assets have been acquired.  I am particularly aware of the long period that has taken place since the parties separated and the variations that have occurred in the assets and liabilities of the parties during that time.

5. I have noted that the parties have also reached and executed a binding Child Support Agreement in relation to the provision for the two infant children of the marriage. 

6. My obligation to ensure that this consent order is just and equitable in all the circumstances is, to a large extent, made possible because of the involvement of experienced solicitors and counsel in this matter.  It is also based upon the knowledge that the parties are aware of their rights, duties and obligations because they have been involved in ongoing litigation in this Court for many years.  Therefore, notwithstanding that I am unable to carry out what would be described as the usual calculations, I am satisfied that it is just and equitable in all the circumstances to make this consent order and bring to an end the long litigation between the parties.

7. I therefore make the orders this day in the terms of the minutes this day signed by me.  The Court will seal the copies to be provided.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  24 March 2010