FAMILY COURT OF AUSTRALIA
Warrick & Mia (No. 2) [2021] FamCA 249
File number(s): PAC 845 of 2017 Judgment of: FOSTER J Date of judgment: 29 April 2021 Catchwords: FAMILY LAW – PROPERTY – property adjustment – where discussion of applicable principles – where Applicant deceased – where no appearance on behalf of the Applicant deceased estate – where matter proceeded on an undefended basis – where appropriate to make order in favour of the applicant estate. Legislation: Family Law Act 1975 (Cth) s 75(2), 79, 79(2), 79(4) Cases cited: Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91.
Farmer and Bramley [2000] FamCA 1615; (2000) FLC 93-060
Horrigan & Horrigan [2020] FamCAFC 25
Kessey and Kessey (1994) FLC 92-495
Number of paragraphs: 74 Date of hearing: 27 April 2021 Place: Parramatta Solicitor for the Applicant: No appearance by the Applicant nor Just In Case Legal Counsel for the Respondent: Mr Todd Solicitor for the Respondent: Du & Associates ORDERS
PAC 845 of 2017 BETWEEN: MR Y WARRICK AS EXECUTOR OF THE ESTATE OF THE LATE MR WARRICK
Applicant
AND: MS MIA
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 APRIL 2021
THE COURT ORDERS THAT:
1.Within three months from this date the wife pay to the applicant or as the applicant may, otherwise, direct in writing the sum of $99,500.
2.In default of the wife complying with the previous order, the applicant have leave to make application to the Court for enforcement of the said order by way of the appointment of a trustee for sale of the subject property.
3.The applicant have leave to relist these proceedings as to implementation or enforcement on short notice by application to the Court in chambers in appropriate circumstances.
4.Any application for costs be made by way of written submissions filed and served within 14 days from this date with any submissions in response to be filed and served within a further seven days and upon completion of submissions judgment as to costs reserved to chambers.
Supreme Court Proceedings
5.That proceedings 2017/… in the Supreme Court of New South Wales being proceedings transferred to this Court be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Warrick & Mia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
On 28 February 2017 the applicant husband filed an Initiating Application in this Court seeking, in summary, orders as follows:
(a)that the financial agreements dated 27 July 2007 and 5…
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- AGLC
- Warrick & Mia (No. 2) [2021] FamCA 249
- Case
- [2021] FamCA 249
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was to determine the appropriate property adjustment orders to be made under section 79 of the *Family Law Act 1975* (Cth), given the death of one of the parties and the undefended nature of the proceedings. The court was required to consider the asset pool for division, including a property owned by the wife and lottery winnings retained by the deceased husband, and to assess the contributions of each party to the marriage.
Foster J reasoned that it was just and equitable to make adjustive orders. The court determined that the asset pool for consideration comprised the wife's property at Suburb M valued at $1,550,000 and the husband's retained lottery winnings of $100,000. The court found it appropriate to notionally include the lottery winnings for adjustment, and conversely, to include any bank balance retained by the deceased husband as it may represent part of those winnings. The court also considered the wife's assertion of a debt to her mother for monies advanced to discharge the mortgage, determining that this liability should remain a private matter between the wife and her mother. Applying the principles from *Kessey & Kessey* (1994) FLC 92-495, the court focused on evaluating the weight of each party's contributions relative to the other, rather than precise mathematical valuations.
The court ordered that within three months, the wife pay the sum of $99,500 to the applicant. In default of this payment, the applicant was granted leave to apply for enforcement by way of the appointment of a trustee for sale of the subject property. The applicant also received leave to relist the proceedings for implementation or enforcement on short notice. Any application for costs was to be made by written submissions within 14 days, with response submissions due within a further seven days, after which judgment on costs would be reserved. Proceedings in the Supreme Court of New South Wales that had been transferred to this court were dismissed.
Orders
Orders of the court
PAC 845 of 2017
BETWEEN:
MR Y WARRICK AS EXECUTOR OF THE ESTATE OF THE LATE MR WARRICK
Applicant
AND:
MS MIA
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 APRIL 2021
THE COURT ORDERS THAT:
1. Within three months from this date the wife pay to the applicant or as the applicant may, otherwise, direct in writing the sum of $99,500.
2. In default of the wife complying with the previous order, the applicant have leave to make application to the Court for enforcement of the said order by way of the appointment of a trustee for sale of the subject property.
3. The applicant have leave to relist these proceedings as to implementation or enforcement on short notice by application to the Court in chambers in appropriate circumstances.
4. Any application for costs be made by way of written submissions filed and served within 14 days from this date with any submissions in response to be filed and served within a further seven days and upon completion of submissions judgment as to costs reserved to chambers.
Supreme Court Proceedings
5. That proceedings 2017/… in the Supreme Court of New South Wales being proceedings transferred to this Court be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In particular, as in this matter, such a circumstance arises where both parties seek orders but are unable to agree as to same. It is just and equitable that there be adjustive orders under s 79 of the Act.The Asset Pool for consideration Clearly, the property at Suburb M is to be considered for the purposes of adjustment. It is, otherwise, contended by the wife that the lottery win in the sum of $100,000, being a windfall to the marriage with those funds being retained by the husband, should be included notionally for the purposes of adjustment. Authority establishes that such should be the case and that some will be included. Otherwise, there are various assets retained by the wife and/or the husband’s estate that so long after separation cannot rationally be included in any asset pool for division. These include the wife’s modest Westpac account, her motor vehicle, her household items, her very modest superannuation entitlement and other items of personalty and a bank balance asserted to be retained by the husband after separation. In circumstances where the lottery win retained by him is to be included for notional adjustment, it is considered inappropriate that any bank balance represented in his deceased estate should not be included as in all probability it may represent part of those lottery winnings. Accordingly, it is considered that the asset pool for consideration comprises the following:Wife The property at Suburb M $1,550,000Husband Retained lottery winnings $ 100,000 The wife, otherwise, asserts a debt to her mother in respect of monies advanced to her to discharge the mortgage and make some payments to the husband as referred to above. In the circumstances of this matter, it is appropriate that that liability remain a matter between the wife and her mother and that the whole of the equity that accrued to the wife by reason of her discharge of mortgage remain as such. It is a matter for her should the property be sold to address any liability to her mother.Contributions In Kessey & Kessey (1994) FLC 92-495 (Full Court) at 89,151 the Full Court made clear that ultimately all that is necessary is to evaluate the weight that should be given to each party’s contributions relative to the contributions of the other party:“... In many – indeed probably in most – property settlement cases the Court has to evaluate and assess contributions to property in the absence of precise valuations of the contributions in question. Indeed, where the contributions to property are indirect or non-financial, precise valuation is impossible, and even where the contributions are direct or financial so that a valuation might be provided, other factors (not capable of precise mathematical statement) may well have eroded the initial value of such contributions. In a case such as the present, it is not necessary to arrive at precise mathematical valuations of the parties’ contributions - all that is necessary is to evaluate the weight that should be given to each party’s contributions relative to the contributions of the other party.”