FEDERAL CIRCUIT COURT OF AUSTRALIA
| DRYSDALE & DRYSDALE | [2014] FCCA 3094 |
| Catchwords: FAMILY LAW – Very long marriage – Husband contended marriage ended much earlier than Wife – part of Husband’s case was that the marital relationship had ended when (he says) the Wife deceived him in relation to a physical deformity of the Wife, which the Husband said had he known of it he would not have married her, yet the Husband continued to have children with the Wife – relevant to Court’s objective determination of the length of the relationship – consideration of Husband’s conduct during the marriage regarding the couple remaining “married” and whether he is able to resile from that publicly represented conduct – relevance of both parties but particularly the Husband not providing relevant evidence from new partner. |
| Legislation: Evidence Act 1995, s.131 |
| Bevan v Bevan (2013) 279 FLR 1 K.R. Handley, Estoppel by Conduct and Representation (Sydney: Thomson – Sweet & Maxwell, 2006) | ||
| Applicant: | MR DRYSDALE | |
| Respondent: | MS DRYSDALE |
| File Number: | CAC 1711 of 2012 |
| Judgment of: | Judge Neville |
| Hearing dates: | 8 – 9 December 2014 |
| Date of Last Submission: | 9 December 2014 |
| Delivered at: | Canberra |
| Oral Reasons Delivered on: | 19 December 2014 |
| Written Reasons provided on: | 6 February 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Counsel for the Respondent: | Mr G Howard |
| Solicitors for the Respondent: | Phelps Reid Lawyers, Canberra |
ORDERS (Amended Pursuant to the Slip Rule):
On or before 60 days from making these Orders, that the Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Husband all of his right title and interest in the property situate at and known as Property N in the State of New South Wales being the whole of the land more particularly described in Certificate of…
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CaseChat Overview and Summary
The primary legal issues before the court were to determine the actual length of the marital relationship for the purposes of property settlement and to make orders for the division of the parties' assets and liabilities. This involved assessing the credibility of the husband's claims regarding the termination of the marital relationship and considering the objective evidence of the parties' conduct throughout their marriage. The court was required to apply principles of family law to achieve a just and equitable distribution of property, taking into account the contributions of each party and the duration of the marriage.
The court's reasoning focused on the objective evidence of the parties' conduct, particularly the husband's continued involvement in the marriage and the procreation of children, which contradicted his claim of an earlier marital breakdown. The court found that the husband's conduct in maintaining the marriage was a significant factor and that he could not unilaterally resile from this publicly represented position. The court also noted the absence of relevant evidence from the husband's new partner, which weakened his assertions.
The court made orders for the transfer of property, with the husband to transfer his interest in Property N to the wife at his expense. Contemporaneously, the wife was to pay the husband a sum equal to one half of the net asset pool, adjusted to reflect each party retaining assets in their name and the wife retaining the proceeds of sale of Property N. The husband was declared the beneficial owner of Property W, with the wife having no interest in it. Both parties were granted sole occupation rights to their respective properties and were to bear associated outgoings. The wife was to retain all assets and resources in her name, including prospective entitlements, and indemnify the husband for her sole debts. Similarly, the husband was to retain his assets and resources, except for specific items to be made available to the wife, and indemnify the wife for his sole debts. Specific orders were made regarding the division of superannuation entitlements, with the wife entitled to 16% of certain splittable payments from the husband's superannuation. The matter was then finalised.
Orders
Orders of the court
1. On or before 60 days from making these Orders, that the Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Husband all of his right title and interest in the property situate at and known as Property N in the State of New South Wales being the whole of the land more particularly described in Certificate of Title Folio (omitted) (hereinafter referred to as “the Property N”).
2. Contemporaneously with the Husband’s compliance with Order 1, that the Wife pay to the Husband a sum of equal to one half of the net asset pool (adjusted on the basis that each party retain assets in their name and the Wife retain the proceeds of sale of the Property N.
3. The Husband is hereby declared to be the beneficial owner of the property situate at and known as Property W, in the State of Queensland being the whole of the land more particularly described as Lot (omitted), Survey Plan (omitted), Title Reference (omitted) (hereinafter referred to as “the Property W”) and the Wife is hereby declared to have no estate or interest either at law or in equity in the Property W.
4. As of the date of these Orders the following will apply:
(a) The Wife have the sole right to occupy the Property N;
(b) The Wife pay all rates, taxes and outgoings of the Property N as they fall due and indemnify the Husband and keep him indemnified with respect to those rates, taxes and outgoings;
(c) The Husband have the sole right to occupy the Property W; and
(d) The Husband pay all rates, taxes and outgoings of the Property W as they fall due and indemnify the Wife and keep her indemnified with respect to those rates, taxes and outgoings.
5. The Wife shall retain all assets and resources which she now has whatsoever and howsoever acquired (including prospective property), and the Husband shall not have a claim against the Wife with respect to property obtained by the Wife including but without limiting the effect hereof the Wife shall retain for her sole use and benefit absolutely:
(a) Any money to the credit of the Wife in any savings or other account;
(b) The Wife’s prospective entitlements arising out of her employment including but not limited to;
(i) Her long service leave with (employer omitted);
(ii) Her annual leave with (employer omitted);
(iii) Her prospective superannuation entitlements with the (omitted) Superannuation (subject to the splitting order set out in Orders 11 and 12);
(iv) Any shares held in the Wife’s name; (v) Any motor vehicle registered in the Wife’s name;
(vi) The furniture, furnishings and personality/other articles of domestic use or ornament located at the Property N;
(vii) The (omitted) described in Orders 9(a) and 9(a)(i);
(viii) Her personal effects not otherwise specified located at the Property N.
6. The Wife indemnify the Husband with respect to all debts and liabilities in the Wife’s sole name.
7. Except as provided for in Order 9 the Husband shall retain all assets and resources which he now has whatsoever and howsoever acquired (including prospective property), and the Wife shall not have a claim against the Husband with respect to property obtained by the Husband including but without limiting the effect hereof the Husband shall retain for his sole use and benefit absolutely;
(a) Any money to the credit of the Husband in any savings or other account;
(b) The Husband’s prospective entitlements arising out of his employment including but not limited to his prospective superannuation entitlements with (omitted) Superannuation (subject to the splitting order set out in Orders 11 and 13);
(c) Any shares held in the Husband’s name;
(d) Any motor vehicle registered in the Husband’s name; (e) The furniture, furnishings and personalty / other articles of domestic use or ornament located at the Property W;
(f) His personal effects not otherwise specified.
8. The Husband indemnify the Wife with respect to all debts and liabilities in the Husband’s sole name.
9. On or before 60 days from the making of these Orders, that the husband:
(a) Do all such acts and things necessary to make available for collection by the Wife or any person(s) nominated in writing by her at any reasonable time requested in writing by the Wife all of the following property formerly located at the Property N and now at a location unknown to the Wife:
(i) The (omitted), formerly a (omitted) wardrobe owned by the Wife’s mother;
(ii) The USB computer memory stick with digital images of the Wife’s overseas holidays;
(iii) Family photographs and albums;
(b) Pending collection by the Wife of the property described Orders 9(a)(i), 9(a)(ii) and 9(a)(iii) of this Order the Husband shall properly maintain such items.
10. On or before 60 days from the date of receipt by the Wife of the property described in Orders 9(a)(ii ) and 9(a)(iii) those items be mailed by the Wife to the Husband by Australia Post registered mail.
11. In accordance with paragraph 90MT(1)(b) Family Law Act 1975: whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of MR DRYSDALE from his interest in the (omitted) Superannuation (the (omitted)), the Wife is entitled to be paid (by the Trustee of the (omitted)) 16% of the splittable payment and there shall be a corresponding reduction in the amount MR DRYSDALE would be entitled to receive but for these Orders.
12. The operative time for Order 11 is four (4) business days after the service of a sealed copy of these Final Orders on the Trustee.
13. The matter is now finalised and will be immediately removed from the docket.
Background
Background to the litigation
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Evidence
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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