SDJ v FWR - [2008] QSC 256

SUPREME COURT OF QUEENSLAND

CITATION:

SDJ v FWR [2008] QSC 256

PARTIES:

SDJ
(applicant)
v
FWR
(respondent)

FILE NO:

BS8788 of 2006

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

24 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7-8 August 2008

JUDGE:

Mullins J

ORDER:

Adjourn the application to a date to be fixed to enable the parties to make submissions on the form of orders that should be made to give effect to these reasons

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – GENERALLY — Part 19 Property Law Act 1974 (Qld) — consideration of the matters relevant to deciding what is just and equitable in making the property adjustment order — where husband with support of wife commenced making payments overseas as part of a Nigerian scam – where husband lost over $800,000 in the scam —where wife was unaware of the extent of the losses — whether any part of the losses should be added back to the asset pool — whether premature distribution by husband of proceeds of sale for property sold prior to separation —identification of liabilities that reduce the asset pool

Property Law Act 1974, s 286, s 291, s 292, s 293, s 297, s 298, s 300, s 303, s 304, s 305, s 306, s 309

Bonnici and Bonnici (1991) FLC 92-272, considered
FO v HAF [2006] QCA 555, considered
Kowaliw and Kowaliw (1981) FLC 91-092, followed
Chorn and Hopkins (2004) FLC 93-204, considered
Townsend and Townsend (1995) FLC 92- 569, considered

COUNSEL:

SCA Middleton for the applicant
KR Geraghty for the respondent

SOLICITORS:

Journey Family Lawyers for the applicant
Hunter Solicitor for the respondent

MULLINS J: The parties were de facto partners for about 14 years until they separated in June 2006. The applicant applies for a property adjustment order pursuant to s 286 of the Property Law Act 1974 (PLA). The parties had agreed on the values for many of their assets. The significant issues that required resolution at the hearing were:

(a)how the losses incurred as a result of payments made by the respondent between 2003 and 2005 to a Nigerian scam should be dealt with;
(b)how the distribution of funds from the sale of the Maudsland property should be treated;
(c)whether the respondent's interest in the Nerang unit should be treated as one of his assets and added to the asset pool;
(d)the extent of the liabilities of the parties at the date of the hearing that can be treated as reducing the asset pool available for distribution.

Relevant background

At the time of the hearing the applicant was 65 years old and the respondent was 69 years old. The applicant is a self-employed podiatrist who worked for remuneration for the duration of the relationship. The respondent is a fully qualified master mariner and had been employed as a ship's captain, but he retired in about 2004 and remained retired at the date of the hearing.

Each of…

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.

Continue reading SDJ v FWR

Details

AGLC: SDJ v FWR [2008] QSC 256
Case: [2008] QSC 256
Decision Date: 24 October 2008

CaseChat Overview and Summary

In the Family Court of Australia, SDJ and FWR were involved in a dispute concerning property adjustment following their separation. The case centred on the financial consequences of the husband's involvement in a Nigerian scam, through which he lost over $800,000. The wife was largely unaware of the full extent of these losses. The court was tasked with determining whether any portion of these losses should be considered in the asset pool for the purposes of equitable distribution and whether the husband's premature distribution of proceeds from a property sold before the separation should be accounted for. Additionally, the court needed to identify the liabilities that should be considered in reducing the asset pool.

The legal issues before the court encompassed the interpretation and application of the Property Law Act 1974 (Qld) concerning equitable distribution in de facto relationships. The court had to assess what is just and equitable in the context of the husband's financial mismanagement and the wife's lack of knowledge about the full extent of the losses. Furthermore, the court needed to consider whether the husband's actions in prematurely distributing proceeds from a property sale before the separation should be factored into the asset pool.

The court found that the wife was unaware of the full extent of the husband's financial losses due to the scam. It was determined that these losses should not be added back to the asset pool as they were not properly disclosed or known to the wife. Regarding the premature distribution of the proceeds from the sale of a property prior to separation, the court ruled that these funds should be included in the asset pool. The court also identified certain liabilities that should reduce the asset pool, ensuring a fair and equitable distribution of the remaining assets. The court adjourned the application to allow the parties to make further submissions on the form of orders to be made.

Orders

Orders of the court

Adjourn the application to a date to be fixed to enable the parties to make submissions on the form of orders that should be made to give effect to these reasons

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	SDJ v FWR [2008] QSC 256
PARTIES:	SDJ (applicant) v FWR (respondent)
FILE NO:	BS8788 of 2006
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	24 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	7-8 August 2008
JUDGE:	Mullins J
ORDER:	Adjourn the application to a date to be fixed to enable the parties to make submissions on the form of orders that should be made to give effect to these reasons
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – GENERALLY — Part 19 Property Law Act 1974 (Qld) — consideration of the matters relevant to deciding what is just and equitable in making the property adjustment order — where husband with support of wife commenced making payments overseas as part of a Nigerian scam – where husband lost over $800,000 in the scam —where wife was unaware of the extent of the losses — whether any part of the losses should be added back to the asset pool — whether premature distribution by husband of proceeds of sale for property sold prior to separation —identification of liabilities that reduce the asset pool Property Law Act 1974, s 286, s 291, s 292, s 293, s 297, s 298, s 300, s 303, s 304, s 305, s 306, s 309 Bonnici and Bonnici (1991) FLC 92-272, considered FO v HAF [2006] QCA 555, considered Kowaliw and Kowaliw (1981) FLC 91-092, followed Chorn and Hopkins (2004) FLC 93-204, considered Townsend and Townsend (1995) FLC 92- 569, considered
COUNSEL:	SCA Middleton for the applicant KR Geraghty for the respondent
SOLICITORS:	Journey Family Lawyers for the applicant Hunter Solicitor for the respondent