Lombard & Wamsley

Case [2021] FamCAFC 124

FAMILY COURT OF AUSTRALIA

Lombard & Wamsley [2021] FamCAFC 124

Appeal from: Wamsley & Lombard [2020] FCCA 1725
Appeal number(s): NOA 49 of 2020
File number(s): DNC 394 of 2016
Judgment of: AINSLIE-WALLACE, RYAN & WATTS JJ
Date of judgment: 23 July 2021
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – Dispute as to when the de facto relationship ended – Whether leave required to commence proceedings out of time pursuant to s 44(6) of the Family Law Act 1975 (Cth) – Factual findings – Material facts overlooked – Incorrect finding as to date relationship ended – Leave pursuant to s 44(6) not considered – Appeal allowed – Re-exercise of discretion – Leave given to apply out of time – Property settlement orders made – COSTS – Parties to pay own costs.
Legislation:

Family Law Act 1975 (Cth) ss 4AA, 44, 90SF, 90SM, 90XE, 90XT, 106A

Federal Circuit Court Rules 2001 (Cth) rr 14.06(2), 22.01

Family Law (Superannuation) Regulations 2001 (Cth) Pt 6
Cases cited:

Clarence & Crisp (2016) FLC 93-728; [2016] FamCAFC 157

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Gadzen & Simkin (2018) FLC 93-871; [2018] FamCAFC 218

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Herford & Berke (No 2) (2019) FLC 93-919; [2019] FamCAFC 182

House v The King (1936) 55 CLR 499; [1936] HCA 40

Radecki & Fairbairn (2020) FLC 94-001; [2020] FamCAFC 307

Sharp v Sharp (2011) 50 Fam LR 567; [2011] FamCAFC 150

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

Whitford and Whitford (1979) FLC 90-612; [1979] FamCA 3
Division: Appeal Division
Number of paragraphs: 46
Date of hearing: 8 December 2020
Place: Brisbane (via video-link)
Counsel for the Appellant: Mr Hibble
Solicitor for the Appellant: Marino Law
The Respondent: Litigant in person

ORDERS

NOA 49 of 2020
DNC 394 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR LOMBARD

Appellant
AND:

MS WAMSLEY

Respondent

ORDER MADE BY:

AINSLIE-WALLACE, RYAN & WATTS JJ

DATE OF ORDER:

23 JULY 2021

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.Orders 1–9 dated 26 June 2020 made in the Federal Circuit Court of Australia be set aside.

3.Pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”) the wife have leave to file an application for property settlement under the Act in accordance with her application filed on 19 September 2016 as subsequently amended.

4.Within 90 days of the date of these orders the husband is to pay the wife the sum of $96,665, after a set-off in the sum of $1,000 the wife is to pay for costs, and that such sum/cash payment will be paid to the wife care of the Trust Account of her solicitor KJ Lawyers & Migration Consultants.

5.In default of payment of all or some of the moneys ordered pursuant to Order 4 herein interest shall be charged and become payable on the amount owing at the…

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AGLC
Lombard & Wamsley [2021] FamCAFC 124
Case
[2021] FamCAFC 124
Decision Date

CaseChat Overview and Summary

Lombard & Wamsley concerned an appeal against property settlement orders made by the Federal Circuit Court of Australia. The appeal was brought by the husband, Mr Lombard, against the wife, Ms Wamsley. The primary issue was whether the wife needed to obtain leave to commence proceedings out of time, pursuant to section 44(6) of the Family Law Act 1975 (Cth), as well as the correctness of the factual findings made by the primary judge regarding the date the de facto relationship ended. The wife had not filed a Summary of Argument as directed, and did not address the husband’s submissions at the appeal hearing.

The court identified several issues that required resolution. First, whether the wife was required to obtain leave to file an application for property settlement out of time, and if so, whether such leave should be granted. Second, the court needed to assess whether the primary judge had overlooked material facts, particularly regarding the date the relationship ended, and whether this affected the property settlement orders. Third, the court had to determine if the primary judge had considered the issue of leave under section 44(6) of the Family Law Act 1975 (Cth) and, if not, whether the court should consider it on appeal. Finally, the court had to decide on the appropriate division of property and any other relevant orders.

The court found that the primary judge had overlooked material facts and made an incorrect finding regarding the date the relationship ended. The court also determined that the primary judge did not consider the issue of leave under section 44(6) of the Family Law Act 1975 (Cth). As such, the appeal was allowed, and the court re-exercised its discretion under section 44(6) of the Family Law Act 1975 (Cth) by granting the wife leave to apply out of time. The court set aside the previous property settlement orders and made new orders regarding the division of property, including the payment of a lump sum by the husband to the wife and the retention of specific properties by each party. Additionally, the court ordered each party to bear their own costs of the appeal.

In summary, the court allowed the husband's appeal, set aside the previous property settlement orders, and made new orders regarding the division of property and payment of a lump sum. The court also granted the wife leave to apply out of time and ordered each party to bear their own costs of the appeal.

Orders

Orders of the court

NOA 49 of 2020

DNC 394 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR LOMBARD

Appellant

AND:

MS WAMSLEY

Respondent

ORDER MADE BY:

AINSLIE-WALLACE, RYAN & WATTS JJ

DATE OF ORDER:

23 JULY 2021

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Orders 1–9 dated 26 June 2020 made in the Federal Circuit Court of Australia be set aside.

3. Pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”) the wife have leave to file an application for property settlement under the Act in accordance with her application filed on 19 September 2016 as subsequently amended.

4. Within 90 days of the date of these orders the husband is to pay the wife the sum of $96,665, after a set-off in the sum of $1,000 the wife is to pay for costs, and that such sum/cash payment will be paid to the wife care of the Trust Account of her solicitor KJ Lawyers & Migration Consultants.

5. In default of payment of all or some of the moneys ordered pursuant to Order 4 herein interest shall be charged and become payable on the amount owing at the rate prescribed by r 22.01 of the Federal Circuit Court Rules 2001 (Cth) until such time as all payments are made in full to the wife by the husband.

6. The wife retain for her sole use, benefit and enjoyment her right, title and interest in:

(a) the real property located at B Street, Suburb C (otherwise known and identified as the property Lot … Plan(s) … Volume … Folio …) (“the B Street, Suburb C property”);

(b) her motor vehicle;

(c) her superannuation entitlement.

7. The husband retain for his sole use, benefit and enjoyment his right, title and interest in:

(a) the real property located at D Street, Suburb E (otherwise known and identified as the property Lot … Plan(s) … Volume … Folio …) (“the D Street, Suburb E property”);

(b) his motor vehicle;

(c) his interest in the family investment share portfolio and properties and family investment (however defined).

8. Dispense with r 14.06(2) of the Family Law Rules 2004 (Cth).

9. In accordance with s 90XT(1)(a) of the Act, whenever a splittable payment within the meaning of s 90XE of the Act becomes payable to or on behalf of the husband from his interest in the Super Fund F (member number …) (“Super Fund F”), the wife is entitled to be paid (by the trustee) the amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $30,000 and there is a corresponding reduction in the entitlement the husband would have had but for these orders.

10. Order 9 has no effect until the expiration of 28 days after the order has been served on the trustee of Super Fund F. In the event that the trustee of Super Fund F has not applied to vary or set the order aside within that 28 days, Order 9 binds the trustee of Super Fund F.

11. The operative time for Order 9 is twenty eight (28) business days after the service of these orders on Super Fund F.

12. That except and unless otherwise specified in these orders:

(a) Each party be solely entitled to the exclusion of the other to all other property (including real property) and chattels of whatsoever nature and kind in the possession and/or control of such party or in which the party has an interest as at the date of these orders and that for this purpose funds in bank accounts and shares are deemed to be in the possession of the person whose name appears on the bank's record thereof; insurance policies are deemed to be in the possession of the person who took out the policy; superannuation entitlements are deemed to be in the possession of the person who is named as the worker to whom the entitlement or benefit is payable, and chattels (including but not limited to motor bikes, cars, personal effects, jewellery and other items) are deemed to be in the possession of the person with the control of the said items as at the date of these orders.

(b) Each party is solely liable for and is to indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders or to which the party has in their possession, care and control including but not limited to the mortgages attached to any real property each party is to retain pursuant to Orders 6 and 7 herein.

(c) Each party is solely liable for and is to indemnify the other against and with respect to all and any personal or private loans, mortgages, lines of credit, credit card debt and all and any other debt whatsoever in their respective names or to which they are otherwise liable.

13. That the parties will execute all documents and do all acts and things necessary to give validity to and operation of these orders and if a party refuses or neglects to execute a document or to do any such thing or act:

(a) a Registrar of the Federal Circuit Court of Australia is appointed to execute such document or to do such act or thing in the name of the defaulting party under s 106A of the Family Law Act 1975 (Cth) and

(b) The defaulting party will pay all reasonable solicitor/client costs incurred by the non-defaulting party for the purpose of enforcing any order or part thereof and such costs will be paid on a party/party or indemnity basis.

14. In the event that the payment due by Order 1 dated 26 June 2020 has been made, that payment is to be offset against the amount due pursuant to Order 4 herein.

15. In the event that the husband’s superannuation interest in Super Fund F has been split in accordance with Orders 5–7 dated 26 June 2020 that adjustment is to be treated as being in compliance with Orders 9-11 herein.

16. Each party pay their costs of the appeal.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The wife filed a Submitting Notice save as to costs in the appeal. She did not file a Summary of Argument as directed and, although the wife appeared at the appeal hearing, she did not address the husband’s submissions.BACKGROUND FACTS The husband was born in 1969 and the wife was born in 1976. They have a daughter whose care they share. The husband is a public servant and the wife works in healthcare. The parties met in 2004 and commenced cohabitation in May 2006 [4]. At the commencement of cohabitation, the wife had superannuation worth $28,318 and the husband had superannuation worth $32,500 [66]. Otherwise, each of the parties had a motor vehicle and personal effects. In addition, the husband had an interest in four properties in Queensland. This was a family venture and at that time the husband had a 1/5th share in one of the properties and a 1/6th share in each of the other properties. He also had a 1/6th interest in a share portfolio with his family members [3]. In 2007, the parties moved to Darwin where they purchased a unit at B Street, Suburb C for $428,000. The property was acquired in the parties’ joint names and, having contributed $15,000 towards the purchase price, the rest was obtained by a mortgage borrowed in their joint names. This is where the parties lived until, in 2009, they moved to a town some distance from Town J. But for the parties’ final move to Darwin, all of their moves were undertaken in furtherance of the husband’s career [7] and [60]. Following the birth of the parties’ daughter in 2010, the wife took time away from work and focussed her time on running the home and child care. In January 2011, the parties purchased D Street, Suburb E for $628,000. The property was acquired jointly and in relation to which they borrowed $413,308 from a third party lender and $25,000 advanced from the husband’s family. The advance was repaid [9]. Both properties were tenanted and enabled the husband to take advantage of tax losses by applying the shortfall of income versus expenses against his other income [10]. In May 2011, the parties moved to Town K and after four years they moved to Town G [12]. According to the husband, the parties separated in March 2014, albeit they continued to live together. In November 2014, the wife commenced a relationship with her now partner [37]. In January 2015, the parties returned to Darwin and ceased living together. Circa February 2015, the parties agreed that the husband would retain the D Street, Suburb E property and the wife would retain the unit at B Street, Suburb C. The husband had savings, including $70,000 (from tax refunds) that he transferred to his father in 2014 which was returned to him a few weeks after the informal property settlement. The wife knew nothing of this [24] and the primary judge was satisfied that the husband attempted to put these monies beyond her reach [26]. Although there was evidence that the husband had additional funds, the actual amount could not be ascertained. On the other hand, the wife had some $45,000 and otherwise, the parties divided a savings account equally [49]. The husband retained the investments with his family and both parties retained their superannuation.

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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