WAMSLEY & LOMBARD - [2020] FCCA 1725

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAMSLEY & LOMBARD

[2020] FCCA 1725

Catchwords:
FAMILY LAW – Property – application by the de facto wife for alteration of property interests pursuant to s 90SM of the Family Law Act – whether the de facto wife made the application within two years after the end of the de facto relationship – where the de facto husband holds interest in a family real estate investments and shares – where both parties claim to have spent significant sums on and be indebted for legal fees – whether debts for legal fees should be ignored.

Legislation:

Family Law Act 1975 (Cth), ss.4AA, 44, 90SF(3), 90SM, 117(2A)

Cases cited:

Clarence v Crisp (2016) 55 FamLR 292, [2016] FamCAFC 157

Trevi v Trevi [2018] FLC 93-858; [2018] FamCAFC 173

NCH v RCH (2004) 186 FLR 240, [2004] FamCA 633

Finlayson v Finlayson (2002) 29 Fam LR 460; [2002] FamCA 898

Applicant:

MS WAMSLEY

Respondent:

MR LOMBARD

File Number:

DNC 394 of 2016

Judgment of:

Judge Young

Hearing dates:

5, 6 & 7 February 2020

Date of Last Submission:

6 March 2020

Delivered at:

Darwin

Delivered on:

26 June 2020

REPRESENTATION

Counsel for the Applicant:

Ms L Morgan

Solicitors for the Applicant:

KJ Legal

Counsel for the Respondent:

Mr M Hibble

Solicitors for the Respondent:

MBA Lawyers

ORDERS

Within 90 days of the date of these orders the respondent de facto husband (“the husband”) is to pay the applicant de facto wife (“the wife”) the sum of $96,665, after a set-off in the sum of $1,000 the wife is to pay for costs, and that such sum/cash payment will be paid to the applicant care of the Trust Account of her solicitor KJ Lawyers & Migration Consultants.
That in default of payment of all or some of the moneys ordered pursuant to Order 1 herein interest shall be charged and become payable on the amount owing at the rate prescribed by prescribed by Rule 22.01 of the Federal Circuit Court Rules 2001 (Cth) (presently at 6.75% p.a.).until such time as all payments are made in full to the wife by the husband.
That the Applicant retain for her sole use, benefit and enjoyment her right, title and interest in:
(a)The real property located at B Street, Suburb C, NT (otherwise known and identified as the property Lot ... Volume ... Folio ...) (“the B Street, Suburb C property”);
(b)Her motor vehicle;
(c)Her superannuation entitlement.
That the Respondent retain for his sole use, benefit and enjoyment his right, title and interest in:
(a)The real property located at D Street, Suburb E, NT (otherwise known and identified as the property Lot ... Volume ... Folio ...) (“the D Street, Suburb E property”);
(b)His motor vehicle;
(c)His interest in the family investment share portfolio and properties and family investment (however defined).
In accordance with section 90XT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or…

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 WAMSLEY & LOMBARD

Details

AGLC: WAMSLEY & LOMBARD [2020] FCCA 1725
Case: [2020] FCCA 1725
Decision Date: 26 June 2020

CaseChat Overview and Summary

This matter concerned an application by the de facto wife for an alteration of property interests pursuant to section 90SM of the *Family Law Act 1975* (Cth). The dispute involved the division of assets and liabilities between the de facto husband and wife, including interests in real estate investments and shares. A key issue was whether the application was made within the two-year time limit prescribed by the Act following the end of the de facto relationship. The court also considered the treatment of debts incurred for legal fees by both parties.

The court was required to determine whether the de facto wife's application was validly made within the statutory time limit. It also had to decide how to treat the significant legal debts incurred by both parties, specifically whether these debts should be recognised and factored into the property settlement or disregarded. The court's determination on these issues would dictate the final division of the parties' property interests.

The court ordered the de facto husband to pay the de facto wife a sum of $96,665, after a set-off of $1,000 for costs payable by the wife. The wife was to retain her interest in a specific property, her motor vehicle, and her superannuation entitlement. The husband was to retain his interest in another property, his motor vehicle, and his share portfolio and other investments. The court also made specific orders regarding the wife's entitlement to a portion of the husband's superannuation from a particular fund, calculated on a base amount of $30,000. Each party was otherwise to retain property in their possession and be solely liable for their respective debts and liabilities.

Orders

Orders of the court

Within 90 days of the date of these orders the respondent de facto husband (“the husband”) is to pay the applicant de facto wife (“the wife”) the sum of $96,665, after a set-off in the sum of $1,000 the wife is to pay for costs, and that such sum/cash payment will be paid to the applicant care of the Trust Account of her solicitor KJ Lawyers & Migration Consultants.

That in default of payment of all or some of the moneys ordered pursuant to Order 1 herein interest shall be charged and become payable on the amount owing at the rate prescribed by prescribed by Rule 22.01 of the Federal Circuit Court Rules 2001 (Cth) (presently at 6.75% p.a.).until such time as all payments are made in full to the wife by the husband.

That the Applicant retain for her sole use, benefit and enjoyment her right, title and interest in:

(a) The real property located at B Street, Suburb C, NT (otherwise known and identified as the property Lot ... Volume ... Folio ...) (“the B Street, Suburb C property”);

(b) Her motor vehicle;

That the Respondent retain for his sole use, benefit and enjoyment his right, title and interest in:

(a) The real property located at D Street, Suburb E, NT (otherwise known and identified as the property Lot ... Volume ... Folio ...) (“the D Street, Suburb E property”);

(b) His motor vehicle;

In accordance with section 90XT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of the husband from his interest in the Super Fund F (member number ...) (“Super Fund F”), the wife is entitled to be paid (by the trustee) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $30,000 and there is a corresponding reduction in the entitlement the husband would have had but for these Orders.

The operative time for Order 5 is fourteen business days after the service of the final orders on Super Fund F (allowing time for procedural fairness for the trustee to advise the parties and the Court should it object to the form of the orders).

This order binds the trustee of Super Fund F.

NOTATION:

A. The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

AND IT IS FURTHER ORDERED:

That except and unless otherwise specified in these orders:

(a) Each party be solely entitled to the exclusion of the other to all other property (including real property) and chattels of whatsoever nature and kind in the possession and/or control of such party or in which the party has an interest as at the date of these orders and that for this purpose funds in bank accounts and shares are deemed to be in the possession of the person whose name appears on the bank's record thereof; insurance policies are deemed to be in the possession of the person who took out the policy; superannuation entitlements are deemed to be in the possession of the person who is named as the worker to whom the entitlement or benefit is payable, and chattels (including but not limited to motor bikes, cars, personal effects, jewellery and other items) are deemed to be in the possession of the person with the control of the said items as at the date of these orders.

(b) Each party is solely liable for and is to indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders or to which the party has in their possession, care and control including but not limited to the mortgages attached to any real property each party is to retain pursuant to orders 4 and 5 herein.

(c) Each party is solely liable for and is to indemnify the other against and with respect to all and any all and any personal or private loans, mortgages, lines of credit, credit card debt and all and any other debt whatsoever in their respective names or to which they are otherwise liable.

That the parties will execute all documents and do all acts and things necessary to give validity to and operation of these orders and if a party refuses or neglects to execute a document or to do any such thing or act:

(a) A Registrar of the Federal Circuit Court of Australia is appointed to execute such document or to do such act or thing in the name of the defaulting party under section 106A of the Family Law Act 1975 (Cth) and

(b) The defaulting party will pay all reasonable solicitor/client costs incurred by the non-defaulting party for the purpose of enforcing any order or part thereof and such costs will be paid on a party/party or indemnity basis.

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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