Morwood and Morwood - [2014] FCCA 2079

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORWOOD & MORWOOD

[2014] FCCA 2079

Catchwords:
FAMILY LAW – Property – long marriage – adult children – presumption of advancement – s.106B of the Family Law Act 1975 (Cth) – partial payment out to husband’s adult children – windfall sale price – husband’s prior contribution of farming land – s.75(2)(o) of the Act matters – justice and equity of orders.

Legislation:

Family Law Act 1975 (Cth), ss.75(2)(o), 106B

Sebastian v Sebastian (No.5) [2013] FamCA 191

Applicant:

MS MORWOOD

Respondent:

MR MORWOOD

File Number:

CSC 527 of 2012

Judgment of:

Judge Hartnett

Heard at:

Cairns

Hearing dates:

2, 3, 5 and 6 June 2014

Delivered at:

Melbourne

Delivered on:

24 September 2014

REPRESENTATION

Counsel for the Applicant:

Mr Baston

Solicitors for the Applicant:

Miller Harris Lawyers

Counsel for the Respondent:

Mr Jacobs

Solicitors for the Respondent:

Murray Lyons

ORDERS

The husband pay to the wife the sum of $790,591 within 60 days hereof. In the event of any default in respect of part or all of this sum, the husband is to pay an interest amount in addition calculated by reference to r.17.03 of the Family Law Rules 2004 (Cth).
The wife retain and/or receive as her absolute property all her right, title and interest to and in the following:-
(a)the funds held in the wife’s bank accounts, including the funds held on her behalf by her solicitors Miller Harris Lawyers;
(b)the wife’s superannuation funds with (omitted) Super (in the name of Ms Morwood) and the wife’s superannuation funds with the (omitted) Superannuation Fund;
(c)the furniture, chattels and household effects in the possession of the wife; and
(d)the personal belongings in the wife’s possession (including but not limited to her jewellery).
The husband retain and/or receive as his absolute property all his right, title and interest to and in the following:-
(a)the residential real property situate and known as Property S in the State of Queensland, being the whole of the land more particularly described as (omitted) on Registered Plan (omitted), county of (omitted), parish of (omitted), having title reference (omitted), subject to all existing encumbrances in relation to which he shall be solely liable. He is, within 60 days hereof, to obtain the release of the wife from any and all liability with respect to the (omitted) loan secured by the real property;
(b)the real property situate at (omitted) on Registered Plan (omitted) in the State of Queensland, county of (omitted), parish of (omitted), having title reference (omitted);
(c)the sale proceeds received by the husband for his half interest in the property situated at and known as Property G in the State of Queensland which was sold by the husband on or about 15 July 2013;
(d)the husband’s business Mr Morwood (ABN (omitted)) and the farming, workshop plant and equipment valued at $514,525;
(e)the husband’s Mercedes Benz motor vehicle;
(f)the funds held in the husband’s bank accounts;
(g)the furniture, chattels and household effects in the possession of the husband; and
(h)the personal belongings in…

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.

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Details

Case: [2014] FCCA 2079
Decision Date: 24 September 2014

CaseChat Overview and Summary

In *Morwood and Morwood*, the husband and wife sought final property orders from the court. The dispute concerned the division of their assets and liabilities following their separation.

The court was required to determine how the parties' various assets, including bank accounts, superannuation, real property, a business, vehicles, and chattels, should be divided. Additionally, the court needed to allocate responsibility for existing liabilities and to make orders regarding the enforcement of its financial orders.

Judge Hartnett ordered the husband to pay the wife a sum of $790,591 within 60 days, with interest payable in case of default. The wife was to retain her bank accounts, superannuation, furniture, chattels, and personal belongings. The husband was to retain his two properties in Queensland, the proceeds from a recently sold property, his business and associated equipment, his motor vehicle, his bank accounts, and his furniture, chattels, and personal belongings. Each party was to be solely responsible for their respective liabilities, with specific provisions for the release of the wife from a mortgage liability and the husband's assumption of certain debts, including a District Court costs order. The orders also stipulated that each party would retain all other property and liabilities not specifically mentioned, and forgo claims to each other's superannuation. Liberty was granted to the wife to apply for further orders concerning a specific property in the event of the husband's non-compliance with payment or property transfer obligations.

Orders

Orders of the court

The husband pay to the wife the sum of $790,591 within 60 days hereof. In the event of any default in respect of part or all of this sum, the husband is to pay an interest amount in addition calculated by reference to r.17.03 of the Family Law Rules 2004 (Cth).

The wife retain and/or receive as her absolute property all her right, title and interest to and in the following:-

(a) the funds held in the wife’s bank accounts, including the funds held on her behalf by her solicitors Miller Harris Lawyers;

(b) the wife’s superannuation funds with (omitted) Super (in the name of Ms Morwood) and the wife’s superannuation funds with the (omitted) Superannuation Fund;

(d) the personal belongings in the wife’s possession (including but not limited to her jewellery).

The husband retain and/or receive as his absolute property all his right, title and interest to and in the following:-

(a) the residential real property situate and known as Property S in the State of Queensland, being the whole of the land more particularly described as (omitted) on Registered Plan (omitted), county of (omitted), parish of (omitted), having title reference (omitted), subject to all existing encumbrances in relation to which he shall be solely liable. He is, within 60 days hereof, to obtain the release of the wife from any and all liability with respect to the (omitted) loan secured by the real property;

(b) the real property situate at (omitted) on Registered Plan (omitted) in the State of Queensland, county of (omitted), parish of (omitted), having title reference (omitted);

(c) the sale proceeds received by the husband for his half interest in the property situated at and known as Property G in the State of Queensland which was sold by the husband on or about 15 July 2013;

(d) the husband’s business Mr Morwood (ABN (omitted)) and the farming, workshop plant and equipment valued at $514,525;

(e) the husband’s Mercedes Benz motor vehicle;

(f) the funds held in the husband’s bank accounts;

(g) the furniture, chattels and household effects in the possession of the husband; and

(h) the personal belongings in the husband’s possession (including but not limited to the husband’s Rolex watch).

The wife remain responsible for and indemnify the husband with respect to any and all liabilities in her name and existing as at the date of these Orders, save for the (omitted) mortgage which is to become the liability of the husband pursuant to these Orders;

The husband be responsible for and indemnify the wife with respect to any and all liabilities in his name including:-

(a) the outstanding costs order made against him and in favour of (omitted) Group in District Court proceedings number (omitted);

(b) his (omitted) Visa Card debt; and

Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:-

(a) each party is solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party at the date of the making of these Orders;

(b) each party is to retain all other assets, financial resources and liabilities in their respective names, including credit or debit balances in any bank accounts and any credit card liabilities;

(c) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

(d) each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other.

In the event of the husband’s non-compliance with orders numbered (1) and/or (3)(a) herein there is liberty to the wife to apply on short notice for an order for the transfer to her or sale of the real property situate at (omitted) on Registered Plan (omitted) in the State of Queensland, county of (omitted), parish of (omitted), having title reference (omitted) and other consequential orders. The costs of any such application as against the husband can be sought by the wife.

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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