FAMILY COURT OF AUSTRALIA
| WESTMORE & WESTMORE | [2007] FamCA 1341 |
| FAMILY LAW - APPEAL – PROPERTY – Asset pool of approximately $1.5 million – Husband appealed property orders claiming inter alia that there had been an incorrect add back of $229,000, his contribution to the wife and her parents’ property had been ignored, and his capital gains tax liability had been improperly dealt with – Of the add back of $229,000, it is held that inconsistent with the trial judge’s findings, approximately $81,000 had been incorrectly added back – While the trial judge had incorrectly stated that there had been no contributions to the wife and her parents’ property, it had been agreed at trial that this was a peripheral issue and any contribution would be de minimus and would not have altered the outcome – In relation to the capital gains tax liability, further evidence was not allowed, it being in improper form and merely speculative. The trial judge’s approach to the uncertain amount of capital gains tax was consistent with earlier authority – Appeal allowed in part in relation to the incorrect add back and orders varied to reflect the appropriate reduction to the add back and consequently the asset pool |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828; (1998) 23 Fam LR 755 C and C [1998] FamCA 143 Chorn and Hopkins (2004) FLC 93-204; (2004) 32 Fam LR 518 Devries v Australian National Railways Commission (1993) 177 CLR 472 M and M [1998] FamCA 42 Rosati v Rosati (1998) FLC 92-804; (1998) 23 Fam LR 288 |
| APPELLANT: | MR WESTMORE |
| RESPONDENT: | MS WESTMORE |
| FILE NUMBER: | MLF | 2638 | of | 2005 |
| APPEAL NUMBER: | SA | 24 | of | 2007 |
| DATE DELIVERED: | 30 October 2007 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Faulks DCJ, Kay and May JJ |
| HEARING DATE: | 12 September and 30 October 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 March 2007 |
| LOWER COURT MNC: | [2007] FamCA 164 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE APPELLANT: |
| COUNSEL FOR THE RESPONDENT: | Mr Davis |
| SOLICITOR FOR THE RESPONDENT: | Tolhurst Druce & Emmerson |
ORDERS
The appeal be allowed in part.
The orders made by the Honourable Justice Dessau on 8 March 2007 be varied as follows:
(a)by substituting the sum of $658,000 for the sum of $700,000 in order 3;
(b)by adding to order 4 the words “and upon transfer of the said property the wife shall pay to the husband the sum of $42,000”.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants…
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- AGLC
- Westmore and Westmore [2007] FamCA 1341
- Case
- [2007] FamCA 1341
- Decision Date
CaseChat Overview and Summary
The legal issues before the Full Court included whether the trial judge had erred in her assessment of the asset pool by incorrectly including or excluding certain items, such as share proceeds received by the husband post-separation, a loan from the husband's parents, and contributions made by the husband to the wife's family property. The Court was also required to consider whether the trial judge had adequately accounted for potential capital gains tax liabilities and whether the final division of assets, which favoured the wife, was just and equitable.
The Full Court allowed the appeal in part, varying the original orders. The Court reduced the total asset pool by substituting $658,000 for $700,000 in relation to one asset. Additionally, the Court ordered that upon the transfer of a property, the wife was to pay the husband $42,000. The Court also granted costs certificates to both the appellant (husband) and the respondent (wife) under the *Federal Proceedings (Costs) Act 1981* (Cth), indicating that it was appropriate for the Attorney-General to authorise payments towards their respective legal costs incurred on appeal.
Orders
Orders of the court
1.
The appeal be allowed in part.
2.
The orders made by the Honourable Justice Dessau on 8 March 2007 be varied as follows:
(a) by substituting the sum of $658,000 for the sum of $700,000 in order 3;
(b) by adding to order 4 the words “and upon transfer of the said property the wife shall pay to the husband the sum of $42,000”.
3.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
4.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
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
The pool of assets established by the trial judge was as follows:·E Street $700,000·T Street(in the husband’s name, valued at $400,000 less a mortgage of $293,000) $107,000·R Street (in the husband’s name, valued at $350,000, with a mortgage of $203,000) $147,000·The wife’s one-third interest as a tenant-in-common with her parents in the property at 2 N Street(the total value being $325,000) $108,333·The husband’s two motor vehicles $11,700·The motor vehicles currently being used by the wife but registered in the husband’s name $16,000·The husband’s remaining shares $97,774·The husband’s bank account $8,800·The husband’s on-line investment account $17,400·The wife’s share portfolio $60,275·The bank account in the name of the wife and the children $24,973·An add-back of $5000 used by the wife to pay legal fees $5,000·An add-back in relation to share proceeds received by the husband since separation $229,000TOTAL $1,533,255 Her Honour found that the wife’s interest in the property at 2 N Street had been acquired before the parties married. It was a home occupied by the wife’s parents. Her Honour determined that it was appropriate to treat the wife’s interest in that property as a resource that would eventually become available to her but not to include it for division between the parties. Her Honour also noted that the parties had agreed that the husband’s superannuation of approximately $340,000 should be divided equally between them. Of the remaining assets in the pool as determined by her Honour, her Honour concluded that based upon the respective contributions of the parties it was appropriate to divide those assets 52.5/47.5 in favour of the husband. Her Honour then concluded that having regard to:·The husband’s higher earning capacity;·The wife’s obligations towards the youngest child of the marriage;·The probable liability of the husband to meet an uncertain amount of capital gains tax; and ·The wife’s ownership of an interest in her parents’ homeit would be appropriate to divide the pool of assets as to 52.5 per cent in favour of the wife and the balance to the husband. In addition it was appropriate that the wife receive a further sum of $79,000 representing 52.5 per cent of the value of an asset said to be wasted by the husband in that he had transferred real estate into the name of the 17 year old son and neglected to put tenants in the property for at least a year thus creating a loss of rental. The husband who appeared on his own behalf sought to argue four grounds of appeal. They were as follows:1.An incorrect add-back has been added to the pool of assets which the Court has split between the husband and wife(a)the add-back value of $229,000 is a “double dip”;(b)the value of $229,000 was added back as a result of shares sold by the husband to pay off debts on an investment property and for living expenses;(c)the total value of $229,000 should not have been added back into the pool.2.A liability of $30,000 (loan from the husband’s parents) should have been subtracted from the pool and the Court ignored this based on hearsay from the wife. Affidavit of [S] and [M] [Westmore] (husband’s parents) relating to the loan was ignored.3.Contribution made by the husband on the wife’s and her parents’ property was ignored by the Court. The husband conducted building work on the wife’s property and supplied building materials. The husband did contribute during the marriage but the Court decided to award the husband zero per cent and the wife 100 per cent.4.Capital gains tax on the disposal of the husband’s investments was not added back into the pool as a liability for the husband.