FEDERAL CIRCUIT COURT OF AUSTRALIA
| WAKELEY & WAKELEY | [2018] FCCA 3707 |
| Catchwords: FAMILY LAW – Property – where each party seeks orders for property distribution after the breakdown of their marriage – where the parties previously entered into property adjustment orders by consent in 1998 – where the husband was made bankrupt during the relationship – whether wife gifted half-share in parents’ property during relationship – where wife has five siblings – whether wife purchased siblings’ share of parents’ property – where the Court found the wife had paid all her siblings for their respective shares of parents’ property – where final property adjustment orders made for wife to receive 62% of net asset pool and husband to receive 38%. EVIDENCE – Where witnesses provide Affidavits in substantially identical terms – where party involved in preparation of witness’s Affidavit – whether evidence devalued. FAMILY LAW – Addendum – Correction of the Reasons for Judgment pursuant to r 1.05 of the Federal Circuit Court Rules 2001 (Cth) & r 17.02A of the Family Law Rules 2004 (Cth). |
| Legislation: Family Law Act 1975, ss.75, 79, 79A, 106A, 117 |
| Cases cited: ASIC v Hellicar (2012) 247 CLR 345 |
| Applicant: | MS WAKELEY |
| Respondent: | MR WAKELEY |
| File Number: | SYC 1927 of 2015 |
| Judgment of: | Judge Harper |
| Hearing dates: | 19 & 20 March 2018 |
| Date of Last Submission: | 19 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Linden Legal |
| Counsel for the Respondent: | Mr Othen |
| Solicitors… |
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- AGLC
- WAKELEY & WAKELEY [2018] FCCA 3707
- Case
- [2018] FCCA 3707
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the validity of the original consent orders under section 79A(1) of the Family Law Act 1975, considering whether the wife's acquisition of her siblings' interests in her parents' property constituted a gift or a purchase, and how this, along with the husband's bankruptcy, impacted the equitable distribution of the parties' assets. The court also had to address issues concerning the weight to be given to affidavits that were substantially identical and prepared by a party involved in the proceedings.
The court found that the wife had indeed paid her siblings for their respective shares of the parents' property, thereby acquiring full ownership. The court ultimately set aside the 1998 consent orders and made new orders, providing the wife with 62% of the net asset pool and the husband with 38%. This decision was subsequently subject to an addendum to correct clerical mistakes and errors arising from accidental slips or omissions in the original reasons for judgment, pursuant to rule 17.02A of the Family Law Rules 2004 (Cth). The addendum clarified specific paragraphs and amended certain orders to ensure consistency with the court's findings and reasoning.
Orders
Orders of the court
1.
That the orders made by the Court in proceedings SY5324 of 1997 in the Family Court of Australia dated 30 January 1998 and made on 14 February 1998 be set aside pursuant to Section 79A(1) of the Family Law Act 1975.
2.
Within 60 days the wife shall pay to the husband the sum of $541,707.
3.
If the wife fails to comply with order 2, the wife shall forthwith:-
(a) take all necessary steps and execute all necessary documents to cause Property A to be sold by public auction with such agent as the wife shall appoint at the earliest convenient date and in any event not later than 10 weeks from the date of the making of these Orders at a reserve price recommended by the agent and the proceeds of the sale shall be distributed as follows by her:
(i) Payment of agent’s commissions and advertising expenses and legal expenses of the sale;
(ii) Payment of any money due and owing to the mortgagee;
(iii) The sum of $541,707 plus interest calculated on a daily basis in accordance with the rate prescribed by the Family Law Rules 2004 from the due date under order 2 to the date of payment;
(iv) In the event Property A sells for a price in excess of $1,800,000:
a. 38% of the amount by which Croydon sells in excess of $1,800,000 to the husband.
b. The balance to the wife or as she may direct in writing.
(v) In the event that Property A is sold pursuant to these orders, and the sale price is less than $1,800,000, the net proceeds of sale shall be divided so as to cause the wife to receive 62% and the husband 38%.
(b) do all acts and things, including paying all monies, signing all documents necessary, and, if necessary, making any necessary Application to the Supreme Court of New South Wales, to cause the Caveats lodged against the title of Property A by Mr A and Ms B (“the siblings”) to be removed from the said title by no later than the date of settlement of and sale of Property A pursuant to this order.
4.
The wife shall vacate Property A by no later than the date of settlement of the sale of the property pursuant to these orders.
5.
That the parties forthwith do all acts and things and sign all documents necessary to cause the framed [products/collectibles] in the possession of the wife to be sold by public auction for the best price reasonably obtainable by [auctioneer] with no reserve price set, and divide the net proceeds of sale, after any fees and charges of [auctioneer] have been deducted, 62% to the wife and 38% to the husband.
6.
That the parties forthwith do all acts and things and sign all documents necessary to cause the pallets of [products/collectibles] more particularly described in the valuation report of [valuer] dated 29 July 2016 to be sold by public auction for the best price reasonably obtainable by [auctioneer] with no reserve price set and the proceeds of sale after any fees and charges of [auctioneer] have been deducted shall be dealt with as follows:
(a) The company [Company P] Pty Ltd shall receive the proceeds of sale; and
(b) The husband shall pay or cause to be paid to the wife the amount which is 62% of the net proceeds of sale of the said [products/collectibles].
7.
That forthwith the wife shall do all acts and things and sign all documents necessary to tender her resignation as a Director and Secretary of [Company P] Pty Ltd and transfer to the husband her two shares in [Company P] Pty Ltd and do all other things necessary, within seven (7) days of the date of these orders and the wife will indemnify and keep indemnified the husband in respect of all claims she may have in relation to [Company P] Pty Ltd, whenever and however arising, including but not limited any interest, loan account, office or employment in relation to [Company P] Pty Ltd.
8.
That, as between the husband and wife and subject to these orders, the husband and wife shall each respectively retain all interest in and entitlement to:
(a) All personal property now in his/ her respective possession or control;
(b) All shares, debentures, unit in unit trusts, bank, building society or credit union accounts standing in his/ her sole name respectively; and
(c) All interests in life insurance policies and superannuation funds standing in his/ her sole name respectively.
9.
That subject to the above orders:-
(a) The husband hereby indemnifies the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband or in his name jointly with any other person; and
(b) The wife hereby indemnifies the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife or in her name jointly with any other person.
10.
That subject to the above orders, each of the husband and the wife release the other from all actions, proceedings, claims, demands, debts, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
11.
That the respondent and applicant do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
12.
That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
13.
If any party seeks an order for costs, an appropriate application to the Court may be made within 28 days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.
THE COURT NOTES THAT:
A. Any application as to costs will be dealt with by way of written submissions, unless the parties request to be heard orally.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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