Westbrook and Blackburn - [2017] FCCA 2039

FEDERAL CIRCUIT COURT OF AUSTRALIA

WESTBROOK & BLACKBURN

[2017] FCCA 2039

Catchwords:
FAMILY LAW – Property – valuation dispute regarding (business omitted) – husband grossly negligent in purchase of asset – impact of inheritance.

Legislation:

Family Law Act 1975, ss.75 & 79

Cases cited:

Stanford & Stanford (2012) 247 CLR 108

Bevan & Bevan (2013) 279 FLR 1
Chapman & Chapman [2014] FamCAFC 91
Kowaliw & Kowaliw (1981) FLC 91-092
Commonwealth & Milledge (1953) 90 CLR 157
In the marriage of Lenehan (1987) 11 Fam LR 615
In the marriage of Georgeson (1995) 19 Fam LR 302
In the marriage of Hickey (2003) 30 Fam LR 355
Hoffman & Hoffman (2014) 51 Fam LR 568
Fields & Smith (2015) 53 Fam LR 1
In the marriage of Bonnici (1991) 105 FLR 102
Aleksovski & Aleksovski (1996) 135 FLR 131
Wall & Wall (unreported, Full Court of the Family Court, Lindenmayer, Kay and Hannon JJ, 26 October 2000)

Applicant:

MS WESTBROOK

Respondent:

MR BLACKBURN

File Number:

ADC 2900 of 2015

Judgment of:

Judge Cole

Hearing dates:

15 & 16 June 2017

Date of Last Submission:

16 June 2017

Delivered at:

Adelaide

Delivered on:

30 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr J Dillon

Solicitors for the Applicant:

Patrick Liptak

Respondent:

Self-represented

ORDERS

That the wife pay to the husband the sum of SEVENTY-SEVEN THOUSAND, ONE HUNDRED AND TWELVE DOLLARS AND FOUR CENTS ($77,112.04) within sixty (60) days.
That simultaneously with the receipt of the funds from the wife referred to in paragraph 1 of this Order, the husband transfer his interest in the property situated at Property A, in the State of South Australia to the wife free of encumbrances within sixty (60) days, with the wife thereafter to keep the husband indemnified in respect of all or any liabilities or outgoings thereon.
That contemporaneous with the said transfer in paragraph 2 hereof, the husband cause to be discharged or refinanced into the husband’s sole name without reference to the Property A property, the debt due and owing to (omitted) Bank Portfolio Loans account (omitted) and (omitted) and the husband thereafter keep the wife forever indemnified in respect to same.
That any interest the husband may otherwise have in the furniture and chattels in the wife’s possession, the wife’s bank accounts, the wife’s superannuation and the wife’s motor vehicle, vest in the wife absolutely.
That any interest the wife may have in:
(a)the property situated at Property E, in the State of South Australia;
(b)the Mr Blackburn testamentary trust;
(c)the (omitted);
(d)the Ford van and utility motor vehicle;
(e)the furniture and chattels in the husband’s possession;
(f)the (omitted) boat;
(g)the (omitted) Bank account;
(h)the (omitted) Bank account;
(i)the (omitted) Bank trust account;
(j)the (omitted) Bank security deposit; and
(k)the husband’s superannuation benefit;
vest in the husband absolutely.
That the husband indemnify the wife and keep her forever indemnified in respect of any debts due and owing on the property in his possession.
That the proceedings be otherwise dismissed.
That liberty…

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 Westbrook and Blackburn

Details

AGLC: Westbrook and Blackburn [2017] FCCA 2039
Case: [2017] FCCA 2039
Decision Date: 30 August 2017

CaseChat Overview and Summary

In *Westbrook and Blackburn*, heard by Judge Cole, the dispute concerned the division of property between a husband and wife. The specific nature of the dispute leading to these orders is not detailed, but the court was required to make final determinations regarding the distribution of various assets and liabilities between the parties.

The court was tasked with determining how to equitably divide the parties' financial resources, including real estate, bank accounts, superannuation, motor vehicles, furniture, chattels, and certain debts. This involved assessing the respective interests of each party in these assets and liabilities and making orders for their transfer or vesting.

Judge Cole ordered the wife to pay the husband a sum of $77,112.04 within sixty days. Concurrently, the husband was to transfer his interest in Property A to the wife, who would then indemnify him against liabilities associated with it. The husband was also ordered to discharge or refinance a specific bank debt into his sole name. Various other assets, including furniture, bank accounts, superannuation, and motor vehicles, were ordered to vest absolutely in either the wife or the husband, with corresponding indemnities for debts associated with those vested assets. The proceedings were otherwise dismissed.

Orders

Orders of the court

That the wife pay to the husband the sum of SEVENTY-SEVEN THOUSAND, ONE HUNDRED AND TWELVE DOLLARS AND FOUR CENTS ($77,112.04) within sixty (60) days.

That simultaneously with the receipt of the funds from the wife referred to in paragraph 1 of this Order, the husband transfer his interest in the property situated at Property A, in the State of South Australia to the wife free of encumbrances within sixty (60) days, with the wife thereafter to keep the husband indemnified in respect of all or any liabilities or outgoings thereon.

That contemporaneous with the said transfer in paragraph 2 hereof, the husband cause to be discharged or refinanced into the husband’s sole name without reference to the Property A property, the debt due and owing to (omitted) Bank Portfolio Loans account (omitted) and (omitted) and the husband thereafter keep the wife forever indemnified in respect to same.

That any interest the husband may otherwise have in the furniture and chattels in the wife’s possession, the wife’s bank accounts, the wife’s superannuation and the wife’s motor vehicle, vest in the wife absolutely.

That any interest the wife may have in:

(a) the property situated at Property E, in the State of South Australia;

(b) the Mr Blackburn testamentary trust;

(d) the Ford van and utility motor vehicle;

(e) the furniture and chattels in the husband’s possession;

(f) the (omitted) boat;

(g) the (omitted) Bank account;

(h) the (omitted) Bank account;

(i) the (omitted) Bank trust account;

(j) the (omitted) Bank security deposit; and

(k) the husband’s superannuation benefit;

vest in the husband absolutely.

That the husband indemnify the wife and keep her forever indemnified in respect of any debts due and owing on the property in his possession.

That the proceedings be otherwise dismissed.

That liberty is granted to apply as to 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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