Wade & Wade - [2023] FedCFamC2F 288

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wade & Wade [2023] FedCFamC2F 288

File number(s): SYC 5475 of 2018

Judgment of: JUDGE MORLEY

Date of judgment: 24 March 2023

Catchwords: FAMILY LAW – property – application for final orders – where Husband seeks sale of the former matrimonial home – where Wife seeks to reside in the former matrimonial home until 2029 – where Husband has 89.5% of the parties’ total superannuation entitlements – where it is just and equitable to achieve a net division of the asset pool as between the parties with a division of 60% to the Wife and 40% to the Husband – where it is just and equitable to achieve a net division of the parties’ superannuation entitlements with a division of 54% to the Wife and 46% to the Husband

Legislation: Family Law Act 1975 (Cth) ss 75, 79, 81, 90XZD

Cases cited:
Dickons & Dickons [2012] FamCAFC 154

Fields & Smith [2015] FamCAFC 57

Fontana & Fontana [2018] FamCAFC 63

Grier & Malphas (2017) 55 Fam LR 107

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395

MacKenzie & MacKenzie (1978) 4 Fam LR 374

Marriage of Crapp (No 2) (1979) 5 Fam LR 47

Marriage of Whitford (1979) for Fam LR 754

Stanford & Stanford (2012) 247 CLR 108

Tamaniego v Tamaniego [2010] FamCAFC 254

Division: Division 2 Family Law

Number of paragraphs: 154

Date of hearing: 23-25 May 2022

Place: Sydney

Counsel for the Applicant: Ms Bateman

Solicitor for the Applicant: Swifte Law

Counsel for the Respondent: Mr Othen

Solicitor for the Respondent: Mervyn Finlay Thorburn & Marshall
ORDERS

SYC 5475 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WADE

Applicant

AND:
MR WADE

Respondent

order made by:

JUDGE MORLEY

DATE OF ORDER:

24 march 2023

THE COURT ORDERS THAT:
1.That pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”):
(a)Both parties shall forthwith do all things and sign all documents necessary to list for sale the property at B Street, Suburb C being folio identifier … (“the property”) by public auction with an agent to be agreed upon between the parties, and failing agreement within a period of 14 days of the date of these orders as nominated by the President of the Real Estate Institute of NSW or his nominee, at a reserve price as agreed between the parties, and failing agreement, as recommended by the selling agent.
(b)The solicitors acting on the sale shall be as agreed between the parties within 14 days of the date of these orders or failing such agreement as nominated by the President of the Law Society of NSW.
(c)In the event the property fails to sell at such auction, then it shall be immediately relisted for sale by private treaty for a period of (two) 2 months with the same selling agent unless otherwise agreed in writing, at a reserve price reduced by 5% or as…

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 Wade & Wade

Details

AGLC: Wade & Wade [2023] FedCFamC2F 288
Case: [2023] FedCFamC2F 288
Decision Date

CaseChat Overview and Summary

In Wade & Wade, the Federal Circuit and Family Court of Australia addressed a property settlement dispute between Ms Wade and Mr Wade. The court considered the distribution of assets, liabilities, and superannuation entitlements, applying the principles set out in the Family Law Act 1975 (Cth). The court found that it was just and equitable to make an order altering the interests of the parties in the property. The court conducted a holistic assessment of the parties' contributions and determined that the husband's contributions slightly outweighed the wife's, with a 52% to 48% division. However, the court also found that an adjustment under section 75(2) of the Act was necessary, resulting in a 12% adjustment in favour of the wife in relation to the asset pool and a 6% adjustment in relation to the superannuation pool. The court ordered the sale of the former matrimonial home, with the net proceeds divided between the parties in a 60% to 40% division in favour of the wife. The court also ordered a superannuation splitting order in favour of the wife from the husband's Super Fund 1 entitlements, with a base amount of $292,419. The court considered the parties' respective liabilities, income, and earning capacity, as well as the wife's primary responsibility for the children's care and the husband's significant financial support for the family unit during the separation period. The court concluded that the proposed orders would achieve a just and equitable property settlement between the parties, taking into account the principles of finality and clean break as set out in section 81 of the Family Law Act 1975 (Cth).

Orders