Milwood and Milwood

[2017] FamCA 1149

FAMILY COURT OF AUSTRALIA

MILWOOD & MILWOOD [2017] FamCA 1149

FAMILY LAW – PRACTICE AND PROCEDURE – Variation of Orders – Liberty to relist.
FAMILY LAW – PROPERTY – Property to be sold and proceeds disbursed – disposal of assets.

Family Law Act 1975 (Cth)

APPLICANT: Mr Milwood

RESPONDENT: Ms Milwood

FILE NUMBER: SYC 7335 of 2010

DATE DELIVERED: 17  August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 17 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Applicant Husband in person

SOLICITOR FOR THE RESPONDENT: Case Guardian on behalf of Respondent Wife

Orders

1. Pursuant to s 79A(1)(a) or s 79A(1)(c) Family Law Act 1975 (Cth), orders made on 30 March 2016 be varied by discharging orders and notations in paragraphs 3.2 to 3.10 and making the orders in paragraphs 2-7 below.

2. The husband and the case guardian do all things necessary to forthwith list the B Town property for sale at a price to be agreed upon between the parties and failing agreement at a price to be determined by a nominee of the President of the Australian Valuers Institute.

3. They are to agree on a solicitor to carry out the conveyancing transaction. If they are unable to agree on a solicitor then the President of the Law Society of New South Wales for the time being is requested to nominate a solicitor.

4. They are to agree on a selling agent and if they are unable to agree on a selling agent then the President of the Real Estate Institute of New South Wales for the time being is requested to nominate a selling agent.

5. The sale is to be by private treaty.

6. After the costs of sale and the discharge of any mortgage, the proceeds of sale are to be paid as to $340,000 to the husband and the balance to the wife.

7. Liberty granted to either party to relist this matter on 14 days notice should there be any issue in relation to the implementation of the order for sale of the B Town property.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Milwood & Milwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7335  of 2010

Mr Milwood

Applicant

And

Ms Milwood

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The husband filed an Application in a Case on 29 August 2016 seeking an order that the final property order made by consent on 30 March 2016 be “altered”. More properly, the application was for a variation of the order pursuant to s 79A of Family Law Act 1975 (Cth) (“the Act”).

2. The gravamen of the husband’s complaint arose from what had happened to goods in the wife’s possession listed and assessed by Mr C at $1,077,033. The orders provided that these goods be sold and order 3.9 of the orders of 30 March 2016 was in the following terms:

   3.9 The net proceeds of the sale of the [goods] (after sale costs including the costs of the selected … auctioneer) are to be divided from time to time in the proportion of 701,628 divided by 1,077,033 (65.14%) to the wife and 375,405 over 1,077,033 (34.85%) to the husband at the time the [goods are] sold or from time to time as [the goods are] sold if not sold in one lot

3. The husband asserted that when the goods were collected and inspected by the valuer rather than there being goods to the value of $1,077,033 what was left was worth only about $60,000.

4. I am comfortably satisfied that the wife misrepresented to me at the time of the final hearing that she still had the goods in her possession worth over $1 million. There is no suggestion before me other than at all relevant times the wife had complete control over these goods. By one means or the other she disposed of almost all of this asset. The case guardian however asserted that as at the date of the final orders, only about $60,000 worth of the goods were left. The evidence does not allow me to say whether the wife disposed of the goods before or after or, partly before and partly after the final consent orders were made on 30 March 2016.

5. On 2 February 2017 the wife’s nephew, Mr D, was appointed case guardian for the respondent wife. The case guardian was present on 30 March 2016 when the consent orders were made.

6. The case guardian, by way of Response to Application in a Case filed 10 August 2017, sought a variation in the orders so that the wife received the whole of the interest in the B Town property; the whole of the interest in the husband’s E Town property and a declaration that the husband had no claim over the $1 million of goods that the wife had or any other goods in her possession. In effect, the case guardian today sought to re-open litigation relating to the history of the parties’ dealings with one another during the marriage. The wife was represented by counsel during the final hearing and when the consent orders were made.

7. Although the husband, during the time that this application has been outstanding, has recast the orders he has sought on more than one occasion, the orders he sought before me today were that an order be made for the sale of the B Town property and that he receive a sum of $340,000 from the proceeds of that sale.

8. I accept on the material that the husband has filed that whilst he was entitled to expect an amount of $375,000 under the final orders from the sale of these goods, he received only $30,000 of that amount and consequently there was a short fall in the payment due to him under the final orders of about $345,000.

9. Because of the misrepresentation of the wife, there has been a miscarriage of justice to the husband by reason of either the wife’s failure to disclose at the time of consent orders were made, that the goods no longer existed or if it did exist and she subsequently sold it, a default by the wife in carrying out the obligations imposed upon her by the order.

10. Accordingly I find that the husband has established a ground under s 79A(1)(a) or alternatively s 79A(1)(c) of the Act to vary the orders so that he is able to receive what he should have received under the final orders and an order in the sum of $340,000 is appropriate.

11. Prior to 30 March 2016, this litigation had a substantial history before me. It is not appropriate for the wife to rely upon her own failure to disclosure or upon her default to have the whole of the s 79 proceedings heard de novo.

12. The husband and the case guardian have given me different estimates as to the current value of the B Town property, ranging from $750,000 to $1 million. It seems that there is sufficient equity in the B Town property for the husband to receive $340,000 from the wife’s share of the B Town property upon its sale. The amount that the wife might then receive is obviously dependent upon the amount achieved by way of sale price of the property.

13. As a matter of discretion I find that it is appropriate to vary the orders so that the orders in relation to the sale of the goods and the distribution of the proceeds of sale of the goods is discharged and a further order is made for the sale of the B Town property and for payment from the wife’s share of that sale a sum of $340,000 to the husband.

14. Because of the long running nature of this case, in order to bring it to an end and to leave the possibility of the wife being left with some amount, I have made the payment from the proceeds of sale a sum certain rather than a percentage.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 17 August 2017

Associate: 

Date:  13.9.2010