Watling and Watling - [2008] FMCAfam 581

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WATLING & WATLING

[2008] FMCAfam 581

FAMILY LAW – Property settlement – relatively short marriage – husband has significantly greater earning capacity – wife has care and control of three year old child – 60:40 split.

Family Law Act 1975, ss.75, 79

Hickey v Hickey (2003) FLC 93-143
Mallett & Mallett (1984) FLC 91-507
McLay & McLay (1996) FLC 92-667

Applicant:

MS WATLING

Respondent:

MR WATLING

File Number:

MLC 1457 of 2007

Judgment of:

Riley FM

Hearing date:

6 June 2008

Date of Last Submission:

6 June 2008

Delivered at:

Melbourne

Delivered on:

25 July 2008

REPRESENTATION

Counsel for the Applicant:

Bronia Tulloch

Solicitors for the Applicant:

JH Legal Pty Ltd

Counsel for the Respondent:

Rohan Hoult

Solicitors for the Respondent:

Beaumont Lawyers

ORDERS

Within 30 days:
(a)the husband sign all documents and do all things necessary to transfer to the wife, at the expense of the wife, all of his right title and interest in the property situate at and known as Property B being the land more particularly described in Certificate of Title Volume [8] Folio [6] (“the real property”);
(b)contemporaneously with the transfer referred to in order 1(a), the parties sign all documents and do all things necessary to discharge the mortgage registered number [A] in favour of Westpac Banking Corporation and the wife refinance the mortgage into her name solely; and
(c)contemporaneously with the transfer referred to in order 1a), the wife pay to the husband the sum of $86,811.40.
In the event that the wife does not pay the husband the sum of $86,811.40 within 30 days, the real property be sold and upon completion of the sale the proceeds be applied:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage and any other encumbrance affecting the real property; and
(c)thirdly, the balance be divided between the parties so as to give the wife 60% of the asset pool, after taking into account the property she is to retain under these orders, and so as to give the husband 40% of the asset pool, after taking into account the property he is to retain under these orders.
Pending the transfer referred to in order 1 and the sale referred to in order 2:
(a)the wife have the sole right to occupy the real property and during such right of occupation the wife pay all mortgage repayments, rates, taxes and like outgoings in respect of the real property as they fall due;
(b)the parties hold their respective interests in the real property upon trust; and
(c)neither party encumber the real property without the consent in writing of the other.
The wife retain the Telstra Ltd shares and the AMP Ltd shares held in her name.
The husband retain the Oxiana Resources Ltd shares and the Virgin Blue Ltd shares held in his name and the 2003 Subaru Forrester.
The husband be liable for and indemnify the wife against all payments in respect of…

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 Watling and Watling

Details

AGLC: Watling and Watling [2008] FMCAfam 581
Case: [2008] FMCAfam 581
Decision Date: 25 July 2008

CaseChat Overview and Summary

Watling and Watling involved a dispute between the parties over the division of assets following their separation. The case was heard in the Family Court of Australia. The primary concern was the equitable distribution of the assets, including the real property, shares, and personal possessions, as well as the resolution of financial obligations.

The legal issues the court addressed included the equitable division of the marital property, the handling of joint financial obligations, and the determination of each party's rights over specific assets. The court had to consider the contributions of each party to the acquisition of the assets, their future needs, and the principle of fairness in the division of property.

The court ruled that the husband must transfer his interest in the real property to the wife and that she must refinance the mortgage in her name alone. Additionally, the wife was required to pay the husband a specific sum of money within 30 days. If the payment was not made, the court ordered the sale of the property and the division of the proceeds. The wife was granted the sole right to occupy the property pending the transfer and was responsible for all associated expenses. Each party retained specific shares and personal items, and the court severed any joint tenancies. The husband was also liable for certain credit card payments and both parties were to be solely responsible for their own superannuation benefits and tax liabilities.

The final orders mandated the transfer and refinancing of the real property, the payment of a specific sum by the wife to the husband, and outlined the consequences if the payment was not made. The orders also detailed the division of other assets and financial responsibilities between the parties.

Orders

Orders of the court

Within 30 days:

(a) the husband sign all documents and do all things necessary to transfer to the wife, at the expense of the wife, all of his right title and interest in the property situate at and known as Property B being the land more particularly described in Certificate of Title Volume [8] Folio [6] (“the real property”);

(b) contemporaneously with the transfer referred to in order 1(a), the parties sign all documents and do all things necessary to discharge the mortgage registered number [A] in favour of Westpac Banking Corporation and the wife refinance the mortgage into her name solely; and

In the event that the wife does not pay the husband the sum of $86,811.40 within 30 days, the real property be sold and upon completion of the sale the proceeds be applied:

(a) firstly, to pay all costs, commissions and expenses of the sale;

(b) secondly, to discharge the mortgage and any other encumbrance affecting the real property; and

(c) thirdly, the balance be divided between the parties so as to give the wife 60% of the asset pool, after taking into account the property she is to retain under these orders, and so as to give the husband 40% of the asset pool, after taking into account the property he is to retain under these orders.

Pending the transfer referred to in order 1 and the sale referred to in order 2:

(a) the wife have the sole right to occupy the real property and during such right of occupation the wife pay all mortgage repayments, rates, taxes and like outgoings in respect of the real property as they fall due;

(b) the parties hold their respective interests in the real property upon trust; and

The wife retain the Telstra Ltd shares and the AMP Ltd shares held in her name.

The husband retain the Oxiana Resources Ltd shares and the Virgin Blue Ltd shares held in his name and the 2003 Subaru Forrester.

The husband be liable for and indemnify the wife against all payments in respect of Westpac Visa Credit Card account number [4].

Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the wife);

(b) all monies standing to the credit of the parties in any bank account in that party’s name are to remain the sole property of that party;

(d) insurance policies remain the sole property of the owner named therein;

(e) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

(f) any joint tenancy of the parties in any real or personal estate is expressly severed; and

(g) each party will be solely liable for any taxation assessments issued by the Taxation Department against them for both past and future financial years, and may retain any taxation refunds received by them for those years and both parties agree to make no claims in relation thereto.

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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