Whinton & Whinton - [2014] FamCA 102

FAMILY COURT OF AUSTRALIA

WHINTON & WHINTON AND ORS

[2014] FamCA 102

FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – Just and Equitable – Contributions – Where the husband and wife cohabited for approximately 30 years and raised two children to adulthood – Where the adult children joined as parties in the proceedings – Where the parties conducted business as real estate investors and developers – Where the financial circumstances of the parties are complicated involving companies, numerous bank accounts and a considerable number of properties – Where the husband was involved in a very serious motor vehicle accident in 1986 and received a substantial compensation award for his injuries – Where it is just and equitable to make an order under s 79 of the Family Law Act – Where the husband has a limited capacity to earn income due to his age and mental health – Where the parties’ contributions of income and effort during the marriage were found to be equal – Where the husband borrowed funds without satisfactory explanation about their expenditure – Where it is appropriate to make an adjustment in favour of the wife to take account of this matter – Where a modest adjustment was made in favour of the wife under s 75(2).

Family Law Act 1975 (Cth) – ss 79(1), (2) & (4) and s 75(2)
Family Law Rules 2004 (Cth)

Bevan & Bevan (2013) FLC 93-545
Black and Kelner (1992) FLC 92-287
Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
Kowaliw and Kowaliw (1981) FLC 91-092
Noetel v Quealey [2004] FamCA 790
Stanford v Stanford (2012) FLC 93-518

APPLICANT:

Ms Whinton

1st RESPONDENT:

Mr L Whinton

2nd RESPONDENT:

Mr R Whinton

3rd RESPONDENT:

Mr T Whinton

FILE NUMBER:

SYC

2227

2010

DATE DELIVERED:

3 March 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

20, 21 & 22 March and 8 and 9 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Othen

SOLICITOR FOR THE APPLICANT:

Watkins Tapsell Solicitors and Barristers

COUNSEL FOR THE 1ST RESPONDENT:

Mr Graham

SOLICITOR FOR THE 1ST RESPONDENT:

Flintoff Lawyers

FOR THE 2^ND RESPONDENT:

Mr R Whinton in person

FOR THE 3^RD RESPONDENT:

Mr T Whinton in person (20 March 2013 only)

Orders

It is declared that the liabilities to the husband and the wife by Mr R Whinton and Mr T Whinton are $181,339 and $205,500 respectively, that such liabilities are assets of the wife and that the husband shall forthwith do all things and sign all documents necessary to assign to the wife his interest in such liabilities.
That within 42 days the husband is to pay to the wife the sum of $262,081.
That in the event that the husband fails to comply with the above order he shall forthwith do all things and sign all documents necessary:
(a)To sell the property at Property P, I Street, Town B by public auction;
(b)To pay from the proceeds of sale, after paying…

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 Whinton & Whinton

Details

AGLC: Whinton & Whinton [2014] FamCA 102
Case: [2014] FamCA 102
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered a property settlement dispute between Ms Whinton (the wife) and Mr L Whinton (the husband). The proceedings also involved their adult sons, Mr R Whinton and Mr T Whinton, as parties. The marriage had lasted approximately 30 years, during which the parties raised two adult children and engaged in business as real estate investors and developers. The financial affairs were complex, involving numerous companies, bank accounts, and properties.

The court was required to determine a just and equitable property settlement under section 79 of the *Family Law Act 1975* (Cth). Key issues included assessing the parties' contributions, considering the husband's limited earning capacity due to age and a past serious motor vehicle accident, and addressing unexplained borrowings by the husband. The court also needed to make orders regarding the division of various assets and liabilities, including properties, company shares, bank accounts, and loans to their sons.

The court found that the parties' contributions of income and effort during the marriage were equal. It acknowledged the husband's reduced capacity to earn income. The court also noted that the husband had borrowed funds without providing a satisfactory explanation for their expenditure, and determined that an adjustment in favour of the wife was appropriate to account for this. A modest adjustment was made in favour of the wife under section 75(2) of the Act.

The court made detailed orders for the division of property and liabilities. These included declarations of sole ownership of various companies and properties, transfers of interests in properties and financial accounts, and the assignment of liabilities. The husband was ordered to pay a sum of money to the wife and to discharge certain mortgages. Provisions were also made for the sale of specific properties, with proceeds to be divided or applied as ordered. The orders were to commence operation on 8 April 2014, with provisions for enforcement by a Registrar if a party failed to comply.

Orders