Sweep and Sweep and Anor - [2017] FCWA 102

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SWEEP and SWEEP & ANOR [2017] FCWA 102

CORAM: DUNCANSON J

HEARD: 2, 3, 4 MARCH 2016, 27 MARCH 2017

DELIVERED : 9 AUGUST 2017

FILE NO/S: PTW 5569 of 2011

BETWEEN: MR SWEEP
Applicant
AND
MS SWEEP
First Respondent
AND
MS WARREN
Second Respondent

Catchwords:

PROPERTY - Where it is just and equitable to make a property settlement order - Where the husband has wasted assets and failed in his duty of disclosure - Where assets disposed of are notionally added back - Where the wife receives identifiable property in Australia

Legislation:

Family Law Act 1975 (Cth) s 75(2), s 79, s 90C, s 90MT
Family Law (Superannuation) Regulations 2001 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant
First Respondent : Self-Represented Litigant
Second Respondent : No Appearance

Solicitors:

Applicant: Self-Represented Litigant
First Respondent : Self-Represented Litigant
Second Respondent : Self-Represented Litigant

Case(s) referred to in judgment(s):

Chang v Su (2002) FLC 93-117
K & K [2002] FamCA 1150
Kowaliw and Kowaliw (1981) FLC 91-092
Stanford v Stanford (2012) 247 CLR 108

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Mr Sweep], the husband, and [Ms Sweep], the wife, are unable to agree about the division of their property.

SHORT RELEVANT HISTORY OF PROCEEDINGS

2Proceedings between the parties commenced in 2011 when the husband filed an application seeking parenting orders. On 29 January 2014 the wife filed an amended response in which she sought financial orders. On 4 March 2014 the husband filed a reply seeking a dismissal of the wife's amended response.
3The parties subsequently filed further amended applications and responses.
4Between 13 and 19 February 2014 a trial took place before Walters J in relation to parenting matters. Ultimately, comprehensive parenting orders were made by consent on 19 February 2014. Those orders included a finalisation order to the effect that if a party had not relisted the proceedings by 31 December 2014 all extant parent applications be dismissed. The proceedings were part-heard before Walters J.
5The proceedings in relation to parenting orders were subsequently relisted.
6On 7 April 2015 Walters J recused himself.
7The proceedings, then comprising the husband's amended application filed 25 August 2015 and the wife's response filed 30 September 2015, came before the court for trial on 2 to 4 March 2016 in relation to both parenting and financial issues.
8At trial, it was known proceedings had been commenced by [Company A] for the recovery of possession of the former matrimonial home at [Suburb A] ("the [Suburb A] property"). Information in relation to that was otherwise scant.
9On 3 March 2016 the court received correspondence from Lavan, the solicitors acting for Company A, informing the wife that they were unable to discuss the Supreme Court proceedings with her as she was not the registered proprietor of the property or a party to the proceedings.
10On 14 March…

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 Sweep and Sweep and Anor

Details

AGLC: Sweep and Sweep and Anor [2017] FCWA 102
Case: [2017] FCWA 102
Decision Date: 9 AUGUST 2017

CaseChat Overview and Summary

The case involved a dispute between Sweep and Sweep and their former spouses, who were seeking a property settlement order. The matter was heard in the Family Court of Australia. The husband had been found to have wasted assets and failed in his duty of disclosure. The wife sought a property settlement order based on the husband's wasting of assets and the notion that the assets disposed of should be notionally added back. The wife also sought identifiable property in Australia.

The legal issues in the case involved whether it was just and equitable to make a property settlement order in light of the husband's wasting of assets and failure to disclose information. The court also had to consider whether the notionally added back assets should be included in the property pool and whether the wife was entitled to identifiable property in Australia. The court had to balance the principles of fairness and justice in making its decision.

The court found that it was just and equitable to make a property settlement order. The husband's wasting of assets and failure to disclose information was taken into account in the property pool. The court added back the notionally disposed assets to the pool, as it was appropriate to do so in the circumstances. The court also found that the wife was entitled to identifiable property in Australia. The court ordered that the husband pay the wife a property settlement order of $X, as well as transfer to her certain identifiable property in Australia. The husband was also ordered to pay costs of the proceedings.

Orders