O’Loughlin & Waverley

Case [2023] FedCFamC1F 310

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

O’Loughlin & Waverley [2023] FedCFamC1F 310

File number(s): PAC 716 of 2018
Judgment of: RIETHMULLER J
Date of judgment: 24 April 2023
Catchwords: FAMILY LAW – PROPERTY – Application for property adjustment under s 79 of the Family Law Act 1975 (Cth) – Length of relationship in dispute – Significant differential of time contended between the parties – Where the husband acquired several properties in his name assisted by the homemaking contributions of the wife – Wife conceded to fraudulently claiming social security payments – Where wife lived in husband’s properties after separation – Evidence given by many witnesses to the parties’ relationship – Long relationship found – Fraudulent social security payments not included on balance sheet – 60/40 split of property pool in favour of husband
Legislation:

Evidence Act 1995 (Cth) s 161(1)

Family Law Act 1975 (Cth) s 79

Cases cited:

Chancellor & McCoy (2016) FLC 93-752; [2016] FamCAFC 256

Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Division: Division 1 First Instance
Number of paragraphs: 126
Date of last submission/s: 27 March 2023
Date of hearing: 24 November – 2 December 2022; 28 February 2023; 1 – 3 March 2023; 17 March 2023
Place: Sydney
Counsel for the Applicant: Mr Bennett
Solicitor for the Applicant: Coleman Greig Lawyers
Counsel for the Respondent: Mr Walmsley & Mr Cain
Solicitor for the Respondent: Barry F Cosier & Associates

ORDERS

PAC 716 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS O'LOUGHLIN

Applicant
AND:

MR WAVERLEY

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

24 APRIL 2023

THE COURT ORDERS THAT:

1.Within twenty-eight (28) days of the date of these Orders, each party shall do all acts and things necessary to cause the following to occur simultaneously:

(a)Remove the Caveat … from the title of the property situated at and known as B Street, Suburb C, in the State of New South Wales (being the whole of the land contained in Folio Identifiers … and …) (“the Suburb C property”) at the wife’s cost;

(b)Transfer the Suburb C property to the sole name of the wife at the wife’s cost, such that the husband shall sign all documents presented to him by the wife and the wife shall do all other things necessary to cause such transfer.

2.Pending transfer of the Suburb C property pursuant to Order 1(b) above, the wife shall have exclusive occupation, and the husband shall do all acts and things necessary to provide vacant possession of the Suburb C property.

3.Pending compliance with Order 1(b) above, the wife shall be responsible for all statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the Suburb C property incurred prior to the date of transfer and shall make all such payments as and when they fall due and hereby indemnifies the husband in respect of all other liabilities…

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AGLC
O’Loughlin & Waverley [2023] FedCFamC1F 310
Case
[2023] FedCFamC1F 310
Decision Date

CaseChat Overview and Summary

The case of O’Loughlin & Waverley before Riethmuller J in the Federal Circuit and Family Court of Australia involved a dispute over the division of property between the parties following their separation. The central issue was the length of the relationship, with the husband contending that they separated shortly after their marriage in 2001, while the wife argued that they remained together until 2017. Another significant issue was the fraudulent social security claims made by the wife, which the husband argued should be considered in the property settlement. The court had to determine the appropriate division of the property pool under section 79 of the Family Law Act 1975.

Riethmuller J found that the relationship began in 1985 and the parties did not separate shortly after their marriage in 2001, but rather remained together until 2017. The judge noted that while the wife's fraudulent social security claims were significant, they did not prevent her from pursuing a property settlement under section 79. The court accepted the wife's evidence that she made substantial homemaking contributions during the relationship, and that the husband acquired several properties in his name with her assistance. Consequently, the court ordered a 60/40 split of the property pool in favour of the husband.

The final orders required the husband to pay the wife 40% of the net asset pool, which amounted to $1,538,438.40. If the husband failed to make this payment, certain properties would be sold to discharge the wife's entitlement. The husband was also required to provide vacant possession of the Suburb C property to the wife and indemnify her against certain liabilities. The wife was responsible for the statutory rates, utilities, insurances, outgoings, and expenses in relation to the Suburb C property pending the transfer. The husband was restrained from selling or dealing with certain properties and assets without the wife's consent until certain orders were complied with.

Orders

Orders of the court

PAC 716 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS O'LOUGHLIN

Applicant

AND:

MR WAVERLEY

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

24 APRIL 2023

THE COURT ORDERS THAT:

1. Within twenty-eight (28) days of the date of these Orders, each party shall do all acts and things necessary to cause the following to occur simultaneously:

(a) Remove the Caveat … from the title of the property situated at and known as B Street, Suburb C, in the State of New South Wales (being the whole of the land contained in Folio Identifiers … and …) (“the Suburb C property”) at the wife’s cost;

(b) Transfer the Suburb C property to the sole name of the wife at the wife’s cost, such that the husband shall sign all documents presented to him by the wife and the wife shall do all other things necessary to cause such transfer.

2. Pending transfer of the Suburb C property pursuant to Order 1(b) above, the wife shall have exclusive occupation, and the husband shall do all acts and things necessary to provide vacant possession of the Suburb C property.

3. Pending compliance with Order 1(b) above, the wife shall be responsible for all statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the Suburb C property incurred prior to the date of transfer and shall make all such payments as and when they fall due and hereby indemnifies the husband in respect of all other liabilities incurred prior to the date of transfer.

4. Within fourteen (14) days of the date of these Orders (or such longer period as agreed to by the wife in writing), the husband shall pay, or cause to be paid to the wife, a sum equivalent to the wife receiving 40 per cent of the net asset pool, being $1,538,438.40, with such payment to be made to the Coleman Greig Trust Account, D Bank, Coleman Greig Lawyer Pty Ltd Trust Account No. …13.

5. In the event that payment is not made by the husband to the wife in compliance with Order 4 above, within a further fourteen (14) days of non-compliance, the husband shall do all acts and things and sign all documents necessary to:

(a) Transfer to the wife, from the monies held in Westpac Account No. …06 the amount calculated in accordance with Order 4 above (and any interest that arises under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) and in accordance with Order 19(a) below; and

(b) In the event that the sum paid in accordance with Order 5(a) is insufficient to satisfy Order 4, THEN cause the property situated at and known as E Street, Suburb F, in the state of New South Wales (being the whole of the land contained in Folio Identifier …) (“the Suburb F property”) to be sold by private treaty at the earliest possible date and that the proceeds of sale shall be disbursed as follows:

(i) In payment of the agent’s commission, advertising expenses and legal expenses of the sale;

(ii) In payment of the costs incurred in relation to the nomination of a real estate agent (if any), in payment of the costs incurred in relation to the nomination of a solicitor (if any), and in payment of the costs in relation to the determination of selling price by the President of the New South Wales division of the Australian Property Institute, or his/her nominee (if any);

(iii) Discharge of mortgage (if any) secured on the title of the Suburb F property;

(iv) In payment of the wife of the balance owing to her pursuant to Order 4 above, together with interest pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);

(v) In payment of the balance (if any) to the husband.

6. In the event there is not an exchanged sale contract for the Suburb F property on foot by private treaty pursuant to Order 5 above within six (6) months of these Orders (with a settlement date no longer than 8 months from the date of these orders), then the husband shall forthwith do all things necessary to cause the Suburb F property to be sold by public auction at the earliest possible date, with a reserve price as agreed or, in absence of agreement, a sum of 90 per cent of the value as set out in the updated valuation report from G Company, and on completion of the sale the proceeds of sale shall be disbursed as provided for in Order 5 above.

7. Simultaneously with the settlement of a sale effected in accordance with Order 5 or Order 6 above, the wife shall remove, or cause to be removed, the Caveat … secured against the title of the property of the Suburb F property at the wife’s cost.

8. In the event that there is a shortfall in the monies received by the wife pursuant to Order 5 and Order 6 above, such that the wife receives less than the sum required pursuant to Order 4, then, within a further fourteen (14) days of compliance with Order 6 above, the husband shall do all acts and things and sign all documents necessary to cause the property situated at and known as H Street, J Town, in the state of New South Wales (being the whole of the land contained in Folio Identifier …) (“the Suburb K property”) to be sold by private treaty at the earliest possible date and that the proceeds of sale shall be disbursed as follows:

(a) In payment of the agent’s commission, advertising expenses and legal expenses of the sale;

(b) In payment of the costs incurred in relation to the nomination of a real estate agent (if any), in payment of the costs incurred in relation to the nomination of a solicitor (if any);

(c) Discharge of the mortgage (if any) secured on the title of the Suburb K property;

(d) In payment to the wife, calculated as follows:

(i) $1,538,438.40, being a sum equivalent to the wife receiving 40 per cent of the net asset pool;

(ii) Less the monies received by the wife pursuant to Order 5 and Order 6 above;

(iii) Plus interest on the outstanding amount, being the amount in Order 8(d)(i) less the amount in Order 8(d)(ii), pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);

(iv) In payment of the balance (if any) to the husband.

9. In the event there is not an exchanged sale still on foot of the Suburb K property by private treaty pursuant to Order 8 above within three (3) months of the time provided for in Orders 8 to offer the property for sale (with a settlement date no later than six (6) months after the time provided for in Order 8,to offer the property for sale), then the husband shall forthwith do all things necessary to cause the Suburb K property to be sold by public auction the earliest possible date, with a reserve price as agreed between the husband and wife (in writing) or, in absence of agreement, a sum of 90 per cent of the value as set out in the updated valuation report from G Company, and on completion of the sale the proceeds of sale shall be disbursed as provided for in Order 8 above.

10. For the purposes of Orders 5, 6, 8 and/or 9 above:

(a) The Real Estate Agent to act in respect of the sale of the Suburb F property and Suburb K property shall be as agreed by the parties and, failing agreement, within seven (7) days of the operative date of the respective Order (5, 6, 8, or 9), shall be a Real Estate Agent appointed by the President of the Real Estate Institute of New South Wales or his/her nominee;

(b) The Solicitor/Conveyancer to act in respect of the sale of the Suburb F property and Suburb K property shall be as agreed by the parties and, failing agreement, seven (7) days of the operative date of the respective Order (5, 6, 8, or 9), shall be a Solicitor/Conveyancer appointed by the President of the Law Society of New South Wales or his/her nominee; and

(c) The sale price for the Suburb F property and Suburb K property, to be sold by private treaty, shall be as agreed between the parties and, failing agreement, within seven (7) days of the date of the relevant order, shall be any reasonable offer equivalent to or over a price determined by the President of the New South Wales Division of the Australian Property Institute or his/her nominee and the value as set out in any updated valuation report by G Company; and

(d) The agent/s and conveyancer/s shall communicate with the wife regarding the progress and sale of the Suburb F property and Suburb K property.

11. Pending the sale of the Suburb F property and Suburb K property, the husband shall have the right to exclusive occupation of the Suburb F property and Suburb K property and shall:

(a) Keep the Suburb F property and Suburb K property in good order and repair;

(b) Cooperate in a reasonable way with the requests of the real estate agents and/or prospective purchasers including, but not limited to:

(i) Providing keys to the Suburb F property and Suburb K property to obtain access; and

(ii) Doing all things necessary to facilitate access to the Suburb F property and Suburb K property at all reasonable times and facilitating access for inspection without interference;

(c) Maintain the Suburb F property and Suburb K property in a presentable condition so as to facilitate the sale including, but not limited to, presenting the property in a neat and tidy condition at all times when the property is subject to inspection;

(d) Do all things necessary to facilitate a sale of the Suburb F property and Suburb K property at the earliest possible time and shall refrain from doing or saying anything which has the effect of hindering or preventing an inspection or sale being effected.

12. Should the husband fail to comply with Order 5(b) or Order 8 above, then:

(a) Following 28 days of non-compliance with Order 11(b) or Order 8 above, the wife shall (upon filing an affidavit attesting to the non-compliance) be deemed Trustee for sale and cause the following to occur:

(i) If not already sold, the sale of the Suburb F property pursuant to Order 5(b) and Order 6;

(ii) The sale of the Suburb K property pursuant to Order 8 and Order 9 (if necessary for compliance with Order 4 above).

13. For the purposes of Order 12 above:

(a) Order 11 shall remain in effect except that the husband shall also allow the wife reasonable access to the Suburb F property and/or Suburb K property and facilitate the inspection and sale of those properties;

(b) Should the parties not agree to a real estate agent pursuant to Order 10(a) above, then within 14 days of the wife’s appointment as Trustee, the wife shall be at liberty to appoint a real estate agent/s to sell the Suburb F property and/or Suburb K property;

(c) Should the parties not agree to a conveyancer pursuant to Order 10(b) above, then within 14 days of the wife’s appointment as Trustee, the wife shall be at liberty to appoint a conveyancer/s to sell the Suburb F property and/or Suburb K property;

(d) The wife shall be at liberty to accept any reasonable offers as defined in Order 10(c) or, in absence of such an offer within six (6) months of being appointed as Trustee, any reasonable offer over 80 per cent of the value of the Suburb F property and/or Suburb K property as per any updated valuation report from G Company.

14. Except as otherwise provided for in these Orders, the husband shall retain, to the exclusion of the wife, his right, title and interest in the following:

(a) The Suburb F property (subject to Order 5 and Order 6 above);

(b) The Suburb K property (subject to Orders 4, 5, 7 and/or 8 above);

(c) All livestock currently held on the Suburb F property and Suburb K property;

(d) All plant, machinery and equipment currently held on the Suburb F property and Suburb K property;

(e) Any and all motor vehicles currently in the husband’s name;

(f) Monies loaned to L Pty Ltd, by way of mortgage … secured against the title of M Street, N Town (“the Suburb O property”), including any interest received;

(g) All other personal property now in his respective possession or control.

15. Except otherwise provided for in these Orders, the wife shall retain, to the exclusion of the husband, her right, title and interest in the following:

(a) Monies in Commonwealth Bank Account No. …79;

(b) Monies in NAB Account No. …24;

(c) All property and chattels currently situated on the Suburb C property including, but not limited to, livestock, equipment and machinery and motor vehicles;

(d) Motor Vehicle 1;

(e) Motor Vehicle 2;

(f) Motor Vehicle 3

(g) All other personal property now in her possession or control.

16. The husband shall indemnify and keep indemnified the wife in relation to any and all liabilities currently in his sole name or held jointly with any other person.

17. Following compliance with Order 1 above, the wife shall indemnify and keep indemnified the husband in relation to the following:

(a) All statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the Suburb C property; and

(b) Any other liabilities currently in her sole name or held jointly with any other person.

18. Pending compliance with Orders 1 and 3, 4, 5, 7 and/or 8 above, the husband shall be restrained from selling, disposing of, encumbering or otherwise dealing with his interest in the Suburb F property and Suburb K property without the express written consent of the wife.

19. Pending compliance with Orders 1 and 3, 4, 5, 7 and/or 8 above, the husband shall be restrained from disposing of or otherwise dealing with the following:

(a) Monies held in Westpac Account No. …06 to a sum of $3,700,000, with the husband to be at liberty to utilise any funds held in this account over and above $3,700,000 received in repayment of the loan to L Pty Ltd, by way of mortgage … secured against the title of the Suburb O property, in payment of necessary and reasonable living expenses;

(b) All other proceeds received by the husband from the sale of the Suburb O property.

20. Each party shall do all things necessary, including providing all consents, to give effect to these Orders in the time periods prescribed in these Orders.

21. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Court shall be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party, and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The parties had met as a result of the husband knowing the wife’s previous partner. The wife’s former partner died. The husband and wife commenced a relationship in 1985. The wife has two adult children from her previous relationship, whilst the husband has three adult children. There is some dispute about the nature of the relationship until the parties were married in 2001, and then a significant dispute as to whether they were subsequently together for only a few months or until 2017.THE EVIDENCE OF THE PARTIESThe Wife On the wife’s case, the parties commenced a relationship in 1985 and cohabited for a period in P Town until around 1988, when they took up a rental property in Q Town then subsequently moved to R Street, Suburb S (“the R Street property”).The husband had bought the R Street property in 1983. In 1990, the husband bought T Street, U Town (“the U Town property”) and, in the same year, the wife’s daughter made allegations against the husband causing a period of separation. By 1991, the parties were living between the U Town and R Street properties and reconciled in that year. In 1992, there was another period of separation following further allegations by the wife’s daughter, but a reconciliation occurred soon thereafter. The wife says that the husband accused her of infidelity and assaulted her in 1992 or 1993, however they reconciled and lived together at the R Street property. In 1994 or 1995, the wife moved to a property at V Town with her children and the husband resided at the home he purchased in Suburb W (“the Suburb W property), but visited her at V Town. Between 1999 and 2001, the wife attests that the parties lived together ‘between’ the Suburb W property and another property at X Town, taking turns travelling between them. The parties then marry in 2001 and, later that year, the Suburb W property is sold for over $2.3 million and a property at Suburb O purchased (which contained two houses at the top and bottom of the property respectively), where the parties then resided until 2012, when the Y Town property was purchased. The parties lived at the Y Town property until the Suburb C property was purchased in late 2015 and the wife moved into that property. The wife contends that the husband lived there with her until 2017. In 2016, the wife says she undertook a course in an attempt to improve their marriage, however they ultimately separated in 2017. In September 2017, the husband attended upon the Suburb C house, broke in and chased the wife with a hammer shouting “everything is mine! You don’t want to push me”. The police were subsequently called to the Suburb C house. The wife says separation was final by October 2017 and she commenced proceedings in early 2018. Thereafter has been a variety of incidents and Apprehended Violence Orders involving various parties. The wife in this matter gave evidence over two days, cross-examined by counsel for the husband. The wife conceded in an affidavit filed at the commencement of the proceedings that she had engaged in significant fraud against the Department of Social Security over many years, claiming a pension when she was, on her case, in a married relationship with the respondent and, for a period of time, claiming rental allowance based upon false claims that she was paying rent to a fictitious person.

Decision

Reasons for decision

I am persuaded that the form of orders sought by the wife is generally appropriate to effect the findings I have made.CONCLUSIONS I therefore make orders largely in the terms sought by the wife to effect a split of the parties’ property (as outlined in the table above) of 60 per cent in favour of the husband and 40 per cent in favour of the wife.

Ratio Decidendi

Legal Principle Established

I generally accept Dr AO’s evidence.DATE OF SEPARATION The central issue that was litigated in these proceedings, on the husband’s case, is whether the parties separated soon after their marriage 2001 and thereafter led separate lives, or whether, as alleged by the wife, they separated much later in 2017. There has been a large number of witnesses, all of whom have known the parties at different times. Whilst the false claims for social security are prima facie powerful evidence against the wife, those social security claims are not conclusive evidence and must nonetheless be considered in the context of the whole of the evidence. Such false claims do not operate as some form of estoppel against the wife, nor is there some principle preventing her from pursuing a s 79 claim despite the false representations. Considering the evidence as a whole, I am persuaded that the parties did not separate within weeks of their marriage, but remained together until 2017. More difficult is the question of when the relationship transformed to that of a de facto relationship. It appears that the parties were in a in a close relationship from as early as the late 1980s, living together as a couple for various periods and having some periods where they lived in separate homes. Despite such times, it appears the parties had an ongoing relationship throughout, save for the short periods of separation when allegations were raised by the wife’s daughter against the husband, and that the parties’ relationship was not so close when the wife was at V Town. However, there is no evidence to suggest that either were in a relationship with another person during this period.THE PROPERTY SETTLEMENT CLAIMS Counsel for the wife sought orders providing for the wife to receive 40 per cent of the property pool, recognising the significant initial contribution of the husband. Counsel for the husband made no submissions with respect to the percentage division that would be appropriate, in the property settlement orders that may be made pursuant to s 79 of the Act, in the event that the wife’s version of the relationship was accepted. THE PROPERTY OF THE PARTIES The property of the parties was largely agreed. There was dispute as to the value of various items of machinery that were in the husband’s possession (items 21 to 28 of the joint balance sheet). There was no evidence of the value of these items from a valuer. I am not persuaded that the wife’s estimates are sufficient evidence of the value of the items. In these circumstances, I have relied upon the husband’s admissions as to the value of each of the items 21 to 26, as well as item 28. As there is no evidence of value and no admission with respect to a wood burner (item 27), I have excluded it from the list of property. Similarly, with respect to the furniture of the parties, there is no evidence as to its value and, on the material before the Court, it is difficult to conclude that it would have any significant value, Therefore, I have excluded the furniture of each of the parties from the list of assets (items 29 and 30).