Oxley & Oxley

[2021] FCCA 1158

FEDERAL CIRCUIT COURT OF AUSTRALIA

Oxley & Oxley [2021] FCCA 1158

File number(s):

BRC 10038 of 2020

Judgment of:

JUDGE COATES

Date of judgment:

28 May 2021

Catchwords:

FAMILY LAW – property – application to set aside final property orders – application dismissed.

Legislation:

Corporations Act 2001

Family Law Act1975 (Cth), ss 79A

Cases cited:

Norbis v Norbis (1986) 161 CLR 513

O’Sullivan v Farrer (1989) 168 CLR 210

Waterman & Waterman [2017] FamCAFC 23

Number of paragraphs:

173

Date of last submission/s:

24 February 2021

Date of hearing:

24 February 2021

Place:

Brisbane

Solicitor for the Applicant:

Towns Wilson Lawyers

Counsel for the Respondent:

Mr K. Wilson QC

Solicitor for the Respondent:

Journey Family Lawyers

ORDERS

BRC 10038 of 2020

BETWEEN:

MS OXLEY

Applicant

AND:

MR OXLEY

Respondent

ORDER MADE BY:	JUDGE COATES
DATE OF ORDER:	28 MAY 2021

THE COURT ORDERS:

1.That the Initiating Application filed 29 July 2020 be dismissed.

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.

IT IS NOTED that publication of this judgment under the pseudonym Oxley & Oxley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE COATES:

1. Final property orders were made on 1 May 2014.

2. They were made by consent.

3. The result of the orders was that:

   (a)The wife received a cash payment of $97,500;

   (b)The husband received their Suburb B property with its mortgage debt;

   (c)The husband retained the company C, indemnifying the wife against all claims and debts, and

   (d)Both parties retained vehicles, bank accounts, superannuation and personal items in their name and possession.

4. The outcome of the final orders was that the wife took 56 percent of the property, after a reasonably short relationship, with the court considering the orders to be just and equitable given the contributions and needs.

5. The parties later reconciled for another short relationship and then separated again.

6. The wife filed an Initiating Application on 29 July 2020 seeking to set aside the final orders made in 2014.

7. Her application was filed pursuant to s.79A of the Family Law Act1975 (“the Act”).

8. If the orders are set aside, she seeks an equal division of the asset pool, taking into account the current “net value of other assets, liabilities and superannuation”. That is obviously on the basis that new assets have come into existence.

9. She set out draft orders to achieve that including the selling of a real property at Suburb D (in Queensland), and taking into account all the property existing when she filed this application. The major components of existing property at the time the application was filed includes the house at Suburb D, but also what is probably considered to be a resource for the husband, a lotto win wherein he receives $20,000 a month for 20 years.

10. Events said to be relevant to the wife’s application are: