Bambrick & Gorman

Case [2023] FedCFamC1F 654

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bambrick & Gorman [2023] FedCFamC1F 654

File number: SYC 6883 of 2020
Judgment of: BENNETT J
Date of judgment: 8 August 2023
Catchwords:

FAMILY LAW- PROPERTY- where period of cohabitation was ten years and husband made overwhelming financial contributions- where wife made non-financial contributions and contributions as a homemaker.

FAMILY LAW- PROPERTY- where husband contends that assessment of contribution and future needs must be on monetary sum basis rather than being expressed as a percentage of the total assets divisible between the parties- where assessment expressed in both monetary sum and percentage terms.

FAMILY LAW- SPOUSAL MAINTENANCE- where wife sought $1,000 per week pending payment of her entitlement- where court exercises spousal maintenance power to order such a payment be made- where spousal maintenance order may be subsequently varied if necessary.   
Legislation: Family Law Act 1975 (Cth)
Cases cited:

Bevan & Bevan (2013) FLC 93-545

Browne v Green (1999) FLC 92-873

Carmel-Fevia & Fevia (No.3) [2012] FamCA 631

C & C [1998] FamCA 143

Chorn v Hopkins (2004) FLC 93-204

Cook & Langford (2008) FLC 93-374; [2008] FamCAFC 84

Figgins & Figgins (2002) FLC 93-122

GVC v HPC (1998) FamCA 143

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

M & M (1998) FamCA 42

Omacini and Omacini (2005) FLC 93-218; [2005] FamCA 195

SMB & MFB (2006) FamCA 46

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Williams & Williams [2007] FamCA 313

Division: Division 1 First Instance
Number of paragraphs: 215
Date of hearing: 30 & 31 August 2022
Place: Sydney (via MS Teams)
Counsel for the Applicant: Mr Lloyd SC
Solicitor for the Applicant: John R Quinn & Co
Counsel for the Respondent: Mr Priestly
Solicitor for the Respondent: Parker & Kissane

ORDERS

SYC 6883 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BAMBRICK

Applicant
AND:

MS GORMAN

Respondent

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

8 AUGUST 2023

THE COURT ORDERS THAT:

1.The husband pay to the wife the sum of $1,409,189 within 90 days of the date of this order (“the payment”).

2.If the husband fails to make the payment, the parties do all acts and things and sign all necessary documents so as to list the real property situated at B Street, Town C (hereafter referred to as ‘the B Street property’) for sale by private treaty for a period of two (2) months, with such real estate agent as is agreed between the parties on the following terms and conditions:

(a)The list price of the B Street property be such amount as is agreed between the parties but failing agreement, as nominated by the real estate agent subject to further order of the Court;

(b)The sale price of the B Street property be such amount as is agreed between the parties and failing agreement any offer to buy the property that is within $10,000.00 of the listing price;

(c)The parties co-operate in every…

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AGLC
Bambrick & Gorman [2023] FedCFamC1F 654
Case
[2023] FedCFamC1F 654
Decision Date

CaseChat Overview and Summary

The Bambrick & Gorman case involved a dispute between the husband and wife regarding their financial arrangements and spousal maintenance. The husband had retired and expected a significant income from a property development, while the wife had been living and working separately. The wife moved in with the husband in 2010 but left when she learned about his newborn son. After some deliberation, the wife returned, and they continued their relationship. The husband received $4 million from the sale of a property and advanced $230,000 to the wife under certain conditions. The court was required to decide on the appropriate spousal maintenance for the wife, considering their respective financial situations, the husband's carried-forward losses, and the wife's permanent injury.

The court found that while neither party had given dishonest evidence, the wife's testimony was more reliable and less self-serving. The husband had significant carried-forward losses and owned properties with varying income potentials. The court also considered the wife's permanent injury, which affected her ability to work, and her medical report detailing ongoing discomfort and restricted function. The judge concluded that it was appropriate to make a spousal maintenance order for the wife, despite the lack of post-hearing evidence regarding her income. The interim order of $1,000 per week was deemed necessary to provide for the wife's needs, with the possibility of adjustment if required.

The court's decision included an interim spousal maintenance order of $1,000 per week for the wife, subject to correction of any arithmetical errors or omissions. The court also noted that either party could apply for costs according to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The judge emphasised that this was not an opportunity to re-argue the case but to correct any mistakes in the implementation of the decision. The court took into account the age, health, income, property, and financial resources of both parties, as well as the wife's permanent injury, in making its decision.

Orders

Orders of the court

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Background

Background to the litigation

I do not regard the husband or the wife to have given evidence dishonestly. My impression is that the husband’s evidence was given less objectively than the wife. Neither had perfect memories. Both gave evidence that was proved not to be accurate. I do not regard either party as having given evidence with an intention to mislead but I regard the wife’s evidence to have been given more carefully than the husband’s evidence and that the wife’s evidence was less designed to enhance her own case. SOME FURTHER BACKGROUND The parties met and started going out together in 2009. The husband had retired from his contractor business to re-enter the agricultural industry. He deposes that he had high expectations of receiving a healthy income from the L Property development. The wife was living working at W Pty Ltd living in a property which she rented from her business partner. The husband and wife commenced cohabitation in 2010 when the wife moved into the B Street property. Unbeknownst to the wife, the husband’s son, G was born in 2010 (two days prior to the parties commencing cohabitation). The husband deposes that “I let [Ms Gorman] know when [G] was born.” The wife deposes that the husband told her of G’s birth a day or two after the wife moved into the B Street property. The husband said that the wife “made it clear that she was not happy about the arrival of [G]” The wife deposes to being completely taken aback by the news. She asked the husband why he had not told her earlier that a woman, Ms DD, was pregnant to him and he was about to become a father. The wife deposes that the husband replied “you know how these things go. She could have had a miscarriage. So I just thought I’d wait and see how it went.” The wife says that she asked the husband if he needed time “to work this out” and that she told the husband “I understand that you might need to be with her and your son as a family and I will walk away” to which the husband replied words to the effect of “I didn’t want to be with her when she found out she was pregnant, and I don’t want to be with her now that she has had the kid.” The wife left B Street to give the husband some time to think. The husband pursued the wife over the next few days, convinced her that his priority was to be in a relationship with her and the wife moved back into B Street. The wife was not challenged on any of this evidence in cross examination. Settlement of the sale of K Property took place in 2010. The husband received $4 million. The husband and his partner continued to run livestock operations at K Property by agisting from the new owners. In 2011 the husband advanced $230,000 to the wife as a loan, he claims, on the understanding that the wife would acquire her former husband’s interest in the Town V property and pay off her credit card debts. In 2012 the new owners of K Property purchased the livestock from the husband’s partner and the husband entered into a partnership with the new owners to run the livestock operations.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am satisfied is expressed as an interim order and it can be varied. It is not ideal but that it is proper to make provision for the wife by way of a spousal maintenance order of $1,000 per week. Any injustice which may arise because I do not have evidence of something that happened after the hearing was complete, such as the wife’s income position, can be remedied because the maintenance order, on balance, I think it is more proper to make an order in this form than to deprive the wife of funds when she needs them. CONCLUSION For the above mentioned reasons I make orders as set out at the beginning of these reasons. In the event I have made some arithmetical error or omission that is rectifiable in accordance with the slip rule, the parties may come back to me. This is not an opportunity to re-argue either parties case but to rectify mistake in the implementation of my reasons. COSTS Either party can make an application for costs in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Ratio Decidendi

Legal Principle Established

The husband has a lot of carried forward losses against which he can adjust income. The B Street property has an agreed value of $8,000,375 but does not produce much income. CC Property has an agreed value of $2 million but carries the majority of livestock and produces most of the income. I queried Counsel on the default provisions but Counsel for the husband did not pose any alternative to the default mechanism being exercised over the B Street property rather than CC Property. CONSIDERATIONS UNDER S 75(2) Section 79(4)(e) requires me to take into account the matters referred to in s 75(2) so far as they are relevant. The age and - state of health of each of the parties The husband is 63 years old and in good health. The wife is 67 years old. The wife relies on the affidavit of Dr X, surgeon filed 20 July 2022 annexing his medical report dated 18 May 2022. Dr X’s medical report was prepared pursuant to a letter of instruction sent by the wife’s solicitors on 19 April 2022. For the purposes of preparing his report Dr X assessed the wife on 26 April 2022. His report summarises the wife’s account of the injury including the treatment she received to date. At the time of the report the wife complains of “aching”, ”restricted movement”, “poor […] strength” as well as “occasional paraesthesia […] at night”. As to his clinical opinion on whether the wife suffers ongoing physical impairment as a result of the injury Dr X notes:-[The wife] does have an on-going, physical impairment as a result of the […] injury. She will have difficulty lifting, pushing and pulling more than 2 to 3 kg […]. She has difficulty lifting objects […]. These restrictions will be permanent. Dr X records that the prognosis in respect of any improvement in function is “poor”. Dr X’s report concludes that:-[The wife] suffered a significant injury […] with on-going, activity-related discomfort and restricted function. This restricted function will be permanent with the previously listed restrictions permanently in place, which may affect her ability to return to fruitful employment in the future […]. Dr X was not required for cross examination. I accept his evidence. The husband deposed to not being aware of the extent of the wife’s hand until he read Dr X’s report. The wife’s response, which was not challenged, was that “[Mr Bambrick] was well aware of the limitations […] following the injury. He re-employed the cleaner. He agreed to me having weekly appointments at my hairdresser. I did not start going back to [exercise] until 2018, three years after the accident. [W Pty Ltd] was hardly taxing on my [injury].” I find that the wife has a permanent injury. There is no suggestion of her seeking compensation from the husband under state law. This injury is a matter that I give weight to in deciding on any adjustment under s 75 (2). The income, - property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment.