FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Burrowes & Waldrup [2023] FedCFamC2F 397
File number(s): HBC 1113 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 6 April 2023 Catchwords: FAMILY LAW – property – final orders – both parties made initial financial contributions - weight to be given to large inheritance contributed by Wife –– one or two pool approach - whether Husband’s real property to be sold – disparity of financial contributions – what adjustments required for future needs and affording Husband a reasonable standard of living in all the circumstances – two pool approach determined - 72/28 adjustment of net non-superannuation pool in favour of Wife – no adjustment to superannuation Legislation: Family Law Act 1975 (Cth) ss 75, 75(2), 75(2)(a), 75(2)(b), 75(2)(f), 75(2)(g), 79, 79(2)(n) Cases cited: Bevan & Bevan [1993] FamCA 95, (1995) FLC 92-600, 19 Fam LR 35
Bridges & Bridges [2020] FamCAFC 77
Dickons & Dickons [2012] FamCAFC 154
Dickson & Dickson [1999] FamCA 278, (1999) FLC 92-843, 24 Fam LR 460
Evans & Evans (1978) FLC ¶90-435
Ferguson and Ferguson (1978) FLC 90-500
Hurst & Hurst [2018] FamCAFC 146
Kutcher & Kutcher (1978) FLC ¶90-453
Marriage of Hickey 30 Fam LR 355
Melvin & Melvin [2018] FCCA 1847
Mitchell & Mitchell (1995) FLC ¶92-601
Phillips & Phillips [2002] FamCA 350
Pierce & Pierce [1998] FamCA 74
Stanford and Stanford [2012] HCA 52
Wagstaff and Wagstaff [2018] FCCA 927
Wilson & Wilson [1989] FamCA 34, (1989) FLC 92-033, 13 Fam LR 205
Division: Division 2 Family Law Number of paragraphs: 135 Date of hearing: 15 March 2023 Place: Hobart Solicitor for the Applicant: Ms K Foale, Simmons Wolfhagen Solicitor for the Respondent: Ms H Bassett, Walsh Day Mihal ORDERS
HBC 1113 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BURROWES
Applicant
AND: MR WALDRUP
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
6 APRIL 2023
THE COURT ORDERS THAT:
1.The following non-superannuation assets of the parties be divided such that:
(a)The Wife retains for her sole use and ownership:
(i)The property at B Street, Town C, subject to mortgage for which she will be solely liable;
(ii)Her Motor Vehicle 1;
(iii)Her animals, trailer and gear;
(iv)Motor Vehicle 2;
(v)Farm Equipment 1;
(vi)Farm Equipment 2 and Farm Equipment 3;
(vii)Her bank accounts.
(b)The Husband retains for his sole use and ownership:
(i)Motor Vehicle 3;
(ii)Motor Vehicle 4;
(iii)Farm Equipment 4;
(iv)ANZ Bank account
2.Subject to Order 2A, each party is solely entitled to the exclusion of the other to all other property and chattels in the possession of such party at the date of this order and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records, insurance policies are deemed to be in the possession of the person named as owner or otherwise named as the beneficiary and superannuation entitlements are deemed to be in the possession of the…
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- Burrowes & Waldrup [2023] FedCFamC2F 397
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CaseChat Overview and Summary
The court reasoned that the wife's significant inheritance should be treated as a separate pool of assets, separate from the husband's contributions. Consequently, a 72/28 adjustment of the net non-superannuation pool in favour of the wife was deemed appropriate. No adjustment was made to the superannuation. The court also ordered that the husband's real property be sold, along with two motor vehicles, with the net sale proceeds to be paid into a trust account. The parties were then to agree on the distribution of the trust funds to achieve the 72/28 adjustment.
The final orders made by the court included the division of non-superannuation assets, with the wife retaining certain properties and assets, and the husband retaining others. The court also ordered that the husband's real property and two motor vehicles be sold, with the net sale proceeds to be held in trust. The parties were to agree on the distribution of the trust funds to achieve the 72/28 adjustment. Additionally, the court ordered that neither party should incur any accounts, debts, or liabilities in the name of the other, and both parties should indemnify each other from any claims, actions, or expenses in connection with such accounts, debts, or liabilities.
Orders
Orders of the court
HBC 1113 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BURROWES
Applicant
AND:
MR WALDRUP
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
6 APRIL 2023
THE COURT ORDERS THAT:
1. The following non-superannuation assets of the parties be divided such that:
(a) The Wife retains for her sole use and ownership:
(i) The property at B Street, Town C, subject to mortgage for which she will be solely liable;
(ii) Her Motor Vehicle 1;
(iii) Her animals, trailer and gear;
(iv) Motor Vehicle 2;
(v) Farm Equipment 1;
(vi) Farm Equipment 2 and Farm Equipment 3;
(vii) Her bank accounts.
(b) The Husband retains for his sole use and ownership:
(i) Motor Vehicle 3;
(ii) Motor Vehicle 4;
(iii) Farm Equipment 4;
(iv) ANZ Bank account
2. Subject to Order 2A, each party is solely entitled to the exclusion of the other to all other property and chattels in the possession of such party at the date of this order and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records, insurance policies are deemed to be in the possession of the person named as owner or otherwise named as the beneficiary and superannuation entitlements are deemed to be in the possession of the person named as the employee in the records of the relevant funds.
2A. By consent the husband make available for collection within 28 days any family photographs and personal items at the property at D Street, Town E belonging to the wife, that he does not seek to retain.
3. THAT neither the Wife nor the Husband shall incur in the name of the other, any account, debt or any other liability and subject to the provisions of this Order, shall pay or discharge all accounts, debts and other liabilities presently standing in their respective names or hereinafter incurred by either of them and shall at all times keep the other indemnified therefrom and from all claims, actions and other expenses in connection therewith.
4. That the Wife solely retain the right and benefits of the Super Fund 1 in her name and the Husband will have no entitlement to an interest in the same.
5. The property situated at D Street, Town E (“the Town E Property”) and registered in the name of the Husband be sold and for this purpose the following terms will apply:
(a) The sale will be by private treaty with such agent as the Husband and Wife agree to appoint and failing agreement as to the agent to be appointed within twenty eight (28) days of the Default, then be listed for sale with such agent as the President of the Real Estate Institute of Tasmania (“The President”) shall nominate (“the Agent”) and the costs of and incidental to the request of the President and such appointment to be borne by Husband and the Wife in equal shares as and when they fall due;
(b) The appointment of the Agent shall be on a sole agency basis for a period of not less than six (6) months;
(c) The Agent is hereby authorised and the Husband is to sign any document requested by the Agent within 7 days of the request to:
(i) Authorise the agent to communicate with the Wife;
(ii) Direct the agent to obtain consent from the Wife as to the terms of the Sole Agency Agreement; listing price (and any variation in that listing price); proposed marketing of and the sale price of the Town E Property and to provide feedback to the Wife as to the progress with the sale as if she were a joint owner named on title of the Town E Property;
(iii) Direct the Agent to first obtain, in writing from the Wife or the Wife’s solicitors, the Wife’s agreement to accept any offer to purchase the Town E Property, which the Husband proposes to accept.
(d) In the event of disagreement between the Husband and Wife on any matter referred to in (c) above:-
(i) Either the Husband or Wife may request that the President or his nominee determine the matter in dispute.
(ii) The cost of the President’s determination shall be borne equally between the Husband and Wife.
(e) The Husband will co-operate in every way with the Agent including (without limiting the generality of the foregoing):
(i) making the key to the Town E Property available to the Agent.
(ii) allowing inspection of the Town E Property at all reasonable times requested by the Agent.
(iii) not doing or saying anything to hinder or prevent a sale being effected.
(iv) ensuring the Town E Property including the grounds are in a neat and clean condition at the time of inspection by the Agent and/or prospective purchasers; and
(v) upon completion of the sale, the net proceeds of sale be paid to the Trust account of Walsh Day James Mihal.
(f) By consent the parties will engage F Company, Mr H for the purposes of the sale of the Town E property.
6. Notwithstanding Order 2, the Motor Vehicle 5 in the name of the Husband be sold and the net sale proceeds of sale be paid to the Trust account of Walsh Day James Mihal and for this purpose, the Husband and Wife are to agree within twenty eight (28) days the basis upon which sale is to be effected.
7. Notwithstanding Order 2, the Motor Vehicle 6 presently in the possession of the Husband be sold and the net sale proceeds of sale be paid to the Trust account of Walsh Day James Mihal and for this purpose, the Husband and Wife are to agree within twenty eight (28) days the basis upon which sale is to be effected.
8. Upon all sale proceeds referred to at orders 5, 6 and 7 being in the Trust account of Walsh Day James Mihal, the parties are to reach agreement about the calculation of the distribution of the funds held in trust so to achieve a 72/28 adjustment in favour of the Wife of the net non-superannuation assets in accordance with the reasons for judgment.
THE COURT NOTES THAT:
A. For the avoidance of doubt, no adjustment is to be made for the chattels, household effects and other property which each party currently has in their possession for the reasons at [71] of this judgment.
B. For the avoidance of doubt for the purposes of order 8 the value of items 1, 2 and 5 ordered to be sold will be determined upon sale as the agreed sale price, less agent’s costs, less conveyance costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
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Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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