FITZMAURICE & WOOLRIDGE - [2019] FCCA 1834

FEDERAL CIRCUIT COURT OF AUSTRALIA

FITZMAURICE & WOOLRIDGE

[2019] FCCA 1834

Catchwords:
FAMILY LAW – De facto property dispute – length of relationship significantly disputed – court finding relationship from 2012 to 2016 – applicant wife entering relationship with substantial assets – respondent owning own home before relationship commenced – matrimonial home in joint names – substantial dissipation of wife’s funds – court finding funds dissipated by wife even though unable to say exactly how – just and equitable husband retain his unencumbered home and wife retain the matrimonial home and mortgage thereon.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Stanford & Stanford [2012] HCA 52
Fenton & Marvel [2013] FamCAFC 132

Applicant:

MS FITZMAURICE

Respondent:

MR WOOLRIDGE

File Number:

DGC 2566 of 2017

Judgment of:

Judge Burchardt

Hearing dates:

9 & 10 May 2019

Date of Last Submission:

10 May 2019

Delivered at:

Dandenong

Delivered on:

23 July 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Applicant:

Dandenong Family Lawyers

Counsel for the Respondent:

Ms Fisken

Solicitors for the Respondent:

Farrar Gesini Dunn

ORDERS

That within 21 days of the date of these Orders the Applicant do all such acts and things and sign all documents necessary to remove the caveat registered against the property at Street A, Suburb B, (“the Suburb B property”) (more particularly described as all that piece or parcel of land contained in volume …, folio …), caveat number …, at the expense of the Applicant, and provide to the Respondent evidence of such withdrawal including a copy of the title search for the Suburb B Property showing no instruments are registered against said property.
That within 90 days of these orders being made the Respondent will do all acts and things and sign all documents necessary to transfer to the Applicant all of his right, title and interest in the real property situate at Street C, Suburb D, being all of the land more particularly described in Certificate of Title Volume … Folio … (“the Property”) to the Applicant at the expense of the Applicant (“the transfer”).
That contemporaneously with the transfer of the Property from the Respondent to the Applicant, the parties do all things and sign all documents for the Applicant to discharge the registered joint mortgage … currently secured over the Property at her expense.
In default of compliance with orders 2 and 3 above, the parties do all such acts and things and sign all documents necessary to place the property at Street C, Suburb D, (“the Suburb D Property”) (more particularly described as all that piece or parcel of land contained in volume …, folio …), registered in the names of MS FITZMAURICE and MR WOOLRIDGE, on the market for sale (“the Sale”).
That up to the completion of the settlement of the Sale neither party shall mortgage or otherwise offer the Suburb D property for security other than to comply with these Orders.
That from the date of these Orders the Applicant indemnify the Respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading FITZMAURICE & WOOLRIDGE

Details

AGLC: FITZMAURICE & WOOLRIDGE [2019] FCCA 1834
Case: [2019] FCCA 1834
Decision Date: 23 July 2019

CaseChat Overview and Summary

In the matter of Fitzmaurice & Woolridge, Judge Burchardt of the Family Court of Australia considered a de facto property dispute between the applicant wife and the respondent husband. The central disagreement concerned the length of the de facto relationship, with the court ultimately finding it to have subsisted from 2012 to 2016. The applicant entered the relationship with substantial assets, while the respondent owned his home prior to the commencement of cohabitation. The matrimonial home was held in joint names. A significant issue was the dissipation of the applicant's funds, which the court found occurred, though the precise manner of dissipation could not be determined.

The court was required to determine the just and equitable division of property between the parties, taking into account the disputed length of the relationship, the parties' respective financial positions at the commencement and during the relationship, and the dissipation of the applicant's assets. Specifically, the court had to decide how the parties' existing assets, including the respondent's unencumbered home and the jointly owned matrimonial home subject to a mortgage, should be allocated.

Judge Burchardt reasoned that it was just and equitable for the respondent husband to retain his unencumbered home. Conversely, the applicant wife was to retain the matrimonial home, which was subject to a mortgage. The court's orders detailed the process for the transfer of property interests, the discharge of mortgages, and the potential sale of the matrimonial home if certain conditions were not met. The orders also stipulated the indemnification of each party against liabilities associated with their respective assets and businesses, and provided for the distribution of sale proceeds from the matrimonial home.

Orders

Orders of the court

That within 21 days of the date of these Orders the Applicant do all such acts and things and sign all documents necessary to remove the caveat registered against the property at Street A, Suburb B, (“the Suburb B property”) (more particularly described as all that piece or parcel of land contained in volume …, folio …), caveat number …, at the expense of the Applicant, and provide to the Respondent evidence of such withdrawal including a copy of the title search for the Suburb B Property showing no instruments are registered against said property.

That within 90 days of these orders being made the Respondent will do all acts and things and sign all documents necessary to transfer to the Applicant all of his right, title and interest in the real property situate at Street C, Suburb D, being all of the land more particularly described in Certificate of Title Volume … Folio … (“the Property”) to the Applicant at the expense of the Applicant (“the transfer”).

That contemporaneously with the transfer of the Property from the Respondent to the Applicant, the parties do all things and sign all documents for the Applicant to discharge the registered joint mortgage … currently secured over the Property at her expense.

In default of compliance with orders 2 and 3 above, the parties do all such acts and things and sign all documents necessary to place the property at Street C, Suburb D, (“the Suburb D Property”) (more particularly described as all that piece or parcel of land contained in volume …, folio …), registered in the names of MS FITZMAURICE and MR WOOLRIDGE, on the market for sale (“the Sale”).

That up to the completion of the settlement of the Sale neither party shall mortgage or otherwise offer the Suburb D property for security other than to comply with these Orders.

That from the date of these Orders the Applicant indemnify the Respondent against:

(a) All payments and liability pursuant to the Suburb D Mortgage, including but not limited to any and all payments or outstanding liabilities;

(b) All rates and land tax (if any) with respect to the Suburb D Property and

(c) All expenses with respect to the Suburb D Property; including but not limited to house insurance, utilities, water bills and other outgoings, council rates, and maintenance expenses.

That for the purposes of effecting the sale of the Suburb D property as per Order 4 above, the property is to be sold by the following mechanism:

(a) The parties are to list the property for sale with a real estate agent as nominated by the Applicant.

(b) The Applicant shall instruct a solicitor or conveyancer to act upon the sale of the property;

(i) A date for the sale of the Suburb D property by public action being a date not less than 2 month and not more than 5 months from the date of the orders unless otherwise agreed by the parties in writing;

(ii) A reserve price for the auction and in the event that agreement cannot be reached the parties shall accept the reserve price as set by the President of the Real Estate Institute of Victoria or his/her nominee;

(iii) Other terms and conditions of sale.

(d) The parties shall follow the reasonable recommendations of the nominated real estate agent in relation to the sales and marketing of the Suburb D property and :

(i) Execute all documents requested by the sales agent as auctioneers for sale of the property by auction;

(ii) Execute a contract of sale;

(iii) Cooperate in every way with the agent in relation to the auction of the property including making the keys available for an inspection of the property at times requested by the agent and ensuring that the property is in a clean and neat condition at the time of inspection by the prospective purchasers.

(e) If the Suburb D property is not sold at the auction within 21 days thereafter the parties shall follow all reasonable requests and recommendations of the sales agent to meet the market price and sell the Suburb D property at the best price obtainable.

(f) During the period that the Suburb D property is being offered for sale the Applicant to cooperate in every way with the Respondent, the agent or otherwise, in relation to the sale including ensuring that prospective purchasers are able to inspect the property at all reasonable hours by appointment.

That the Applicant and Respondent do all things necessary to cause the proceeds of the sale of the Property to be distributed as follows:

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

(b) To pay the usual rates adjustments;

(c) To pay the amount required to ANZ for the amount outstanding for the Suburb D Property for loan number …, and to discharge the mortgage securing that loan (mortgage registration number …) (“Suburb D Mortgage”) in the names of MS FITZMAURICE and MR WOOLRIDGE;

(d) To pay the balance, if any, to the Applicant.

That the time limits and the terms and conditions for sale set by these Orders may be varied by the parties by written agreement.

10.

That as and from the date of these orders, the Respondent shall retain for his sole use and benefit absolutely free from any further claim or demand from the Applicant all assets he now has, whensoever and howsoever acquired, including but not limited to:

(a) The Suburb B property;

(b) His shares in Business E Pty Ltd and Business E Pty Ltd;

(d) His motor vehicles;

(e) His personal effects; and

(f) Any other superannuation entitlements standing to his credit.

11.

That as and from the date of these orders, the Applicant shall retain for her sole use and benefit absolutely free from any further claim or demand from the Respondent all assets she now has, whensoever and howsoever acquired, including but not limited to:

(a) The Suburb D property (if not sold pursuant to the orders hereof);

(b) Her shares in Business F Pty Ltd and Business G;

(d) Her motor vehicles;

(e) Her personal effects; and

(f) Any other superannuation entitlements standing to her credit.

12.

That contemporaneously with the making of these orders and unless specified otherwise, the Respondent be liable for and indemnify the Applicant in relation to:

(a) All liabilities associated with Business E Pty Ltd and Business E Pty Ltd;

(b) All liabilities owing over the Suburb B property without limiting the generality thereof, including any past, current or future liabilities from any loans, taxes or duties howsoever arising;

(d) Any and all credit card liabilities in his name; and

(e) Any other liability encumbering any item of property to which he is entitled or to which he would be entitled pursuant to the orders and any liability in his sole name.

13.

That contemporaneously with the making of these orders and unless specified otherwise, the Applicant be liable for and indemnify the Respondent absolutely in relation to:

(a) All liabilities associated with Business F Pty Ltd and Business G;

(b) All liabilities owing over the Suburb D property without limiting the generality thereof, including any past, current or future liabilities from any loans, taxes or duties howsoever arising;

(d) Any or all credit card liabilities in her name; and

(e) Any other liability encumbering any item of property to which she is entitled or to which she would be entitled pursuant to the orders and any liability in her sole name.

14.

That liberty be reserved to either party to apply to the Court with respect to the implementation of these Orders.

15.

That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits files and served by or on behalf of the party alleging this, a Registrar of the Family Court be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such document in the name of such party.

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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