Walmsley and Walmsley (No 5) - [2010] FamCA 1034

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY (NO. 5)

[2010] FamCA 1034

FAMILY LAW – PROPERTY SETTLEMENT – undefended proceedings – where the husband owed significant debt at the commencement of the relationship – where the husband made very little financial contribution during the marriage – where the wife met all expenses of the husband following separation – where it was held that the husband’s non-financial contribution had been recognised – where the husband has received significant financial benefits negating any further entitlement to a further share of the asset pool

Family Law Act 1975 (Cth) ss 75(2) & 79

APPLICANT:

Mr Walmsley

RESPONDENT:

Ms Walmsley

FILE NUMBER:

ADC

728

2008

DATE DELIVERED:

19 November 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

19 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

n/a

SOLICITOR FOR THE APPLICANT:

n/a

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In person

Orders

In full and final settlement of each of the parties’ claim for settlement of property past, present and future:
(a)within twenty-eight [28] days the husband do transfer to the wife all of his right, title, estate and interest both in law and in equity the following properties:
(i) Z1 property;
(ii) Z2 property;
(iii)Z3 property;
(iv)H property;
(v)N property.
PROVIDED THAT the wife do hereafter pay and indemnify husband in relation to monies owing pursuant to mortgages registered over the said properties.
Hereafter the wife shall retain for her sole use and enjoyment absolutely free from any further claim or demand of the husband and that he transfer to the wife all of his right, title, estate and interest both in law and in equity to the wife:
(a)       any insurance policies owned by her;
(b)       her separate savings and investments;
(c)       VK Commodore registration … and the VX Commodore registration …;
(d)       the personality of the wife;
(e)all her estate and interest both at law and in equity which she may now have or hereafter have in any superannuation scheme;
(f)any other property or financial resources of the wife not otherwise specified.
Hereafter the husband shall retain for his sole use and enjoyment absolutely free from any further claim or demand of the wife:
(a)       any insurance policies owned by him;
(b)       his separate savings and investments;
(c)       any motor vehicle presently in his possession;
(d)       the personality of the husband;
(e)all his estate and interest both at law and in equity which he may now have or hereafter have in any superannuation scheme;
(f)any other property or financial resources of the husband not otherwise specified.
The wife do indemnify the husband and keep him forever indemnified with respect to:
(a) all debts and liabilities of the wife;
(b) the wife’s legal and valuation costs.
The husband do indemnify the wife and keep her forever indemnified with respect to:
(a) all debts and liabilities of the husband;
(b) the husband’s legal and valuation costs.
The husband do provide the wife with all DV tapes…

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 Walmsley and Walmsley (No 5)

Details

AGLC: Walmsley and Walmsley (No 5) [2010] FamCA 1034
Case: [2010] FamCA 1034
Decision Date: 19 November 2010

CaseChat Overview and Summary

In *Walmsley and Walmsley (No 5)*, Dawe J made orders in full and final settlement of property claims between the husband and wife. The dispute concerned the division of various assets and liabilities.

The court was required to determine how the parties' property, both past, present, and future, should be divided. This included the allocation of specific real estate, personal property, financial resources, superannuation interests, and responsibility for debts and legal costs.

Dawe J ordered that the husband transfer his interest in several properties to the wife, with the wife to assume responsibility for the associated mortgage payments. The wife was to retain her separate savings, investments, insurance policies, vehicles, superannuation, and other personal property, free from any claim by the husband. Similarly, the husband was to retain his separate savings, investments, insurance policies, vehicles, superannuation, and other personal property. Both parties were ordered to indemnify each other in relation to their respective debts and liabilities, as well as their legal and valuation costs. Additionally, the husband was directed to provide the wife with all DV tapes showing vision of the wife and children from 2000 onwards, or alternatively, provide full copies. Liberty to apply for consequential orders was granted.

Orders

Orders of the court

In full and final settlement of each of the parties’ claim for settlement of property past, present and future:

(a) within twenty-eight [28] days the husband do transfer to the wife all of his right, title, estate and interest both in law and in equity the following properties:

(i) Z1 property;

(ii) Z2 property;

(iii) Z3 property;

(iv) H property;

(v) N property.

PROVIDED THAT the wife do hereafter pay and indemnify husband in relation to monies owing pursuant to mortgages registered over the said properties.

Hereafter the wife shall retain for her sole use and enjoyment absolutely free from any further claim or demand of the husband and that he transfer to the wife all of his right, title, estate and interest both in law and in equity to the wife:

(a) any insurance policies owned by her;

(b) her separate savings and investments;

(d) the personality of the wife;

(e) all her estate and interest both at law and in equity which she may now have or hereafter have in any superannuation scheme;

(f) any other property or financial resources of the wife not otherwise specified.

Hereafter the husband shall retain for his sole use and enjoyment absolutely free from any further claim or demand of the wife:

(a) any insurance policies owned by him;

(b) his separate savings and investments;

(d) the personality of the husband;

(e) all his estate and interest both at law and in equity which he may now have or hereafter have in any superannuation scheme;

(f) any other property or financial resources of the husband not otherwise specified.

The wife do indemnify the husband and keep him forever indemnified with respect to:

(a) all debts and liabilities of the wife;

(b) the wife’s legal and valuation costs.

The husband do indemnify the wife and keep her forever indemnified with respect to:

(a) all debts and liabilities of the husband;

(b) the husband’s legal and valuation costs.

The husband do provide the wife with all DV tapes showing vision of the wife and the children E, S and A and their pets from 2000 onward; or alternatively provide full copies of these tapes of family life to the wife.

Liberty to apply for consequential orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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