WIDMANN & WIDMANN - [2017] FamCA 602

FAMILY COURT OF AUSTRALIA

WIDMANN & WIDMANN

[2017] FamCA 602

FAMILY LAW – PROPERTY –Where the parties were in a relationship for approximately 22 years and have three children of the relationship – Where the wife sought a sum equivalent to 80 per cent of the husband's one-third share of the net proceeds of one of the properties –Where the husband sought that the wife’s application be dismissed as there is no basis for any alteration of his legal interest in assets acquired by him from an inheritance received from his late father –Where the husband received a substantial inheritance approximately six years after the parties' separation – Where the contributions of the parties were equal as at the date of separation – Where adoption of a two-pool approach would not achieve a just and equitable outcome to the proceedings - Court finds that the net assets and superannuation should be divided as to 65 per cent to the husband and 35 per cent to the wife – Court finds no reason for an adjustment in favour of either party on account of section 75(2) factors – Orders made for the husband pay to the wife a sum of $312,490 within three calendar months of the date of the orders.

Family Law Act 1975 (Cth), s 75(2), 79, 79(4)(a-e,) 80(1)(h).

Stanford v Stanford [2012] HCA 52

Bonnici and Bonnici (1992) FLC 92-272
Farmer & Bramley [2000] FamCA 1615
Calvin & McTier [2017] FamCAFC 125

APPLICANT:

Ms Widmann

RESPONDENT:

Mr Widmann

FILE NUMBER:

SYC

2334

2012

DATE DELIVERED:

28 July 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

7-9 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fermanis

SOLICITOR FOR THE APPLICANT:

Rockliffs Solicitors & IP Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Enox

SOLICITOR FOR THE RESPONDENT:

Pearson Emerson Meyer Family Lawyers

Orders

Within three (3) calendar months of the date of these Orders, the husband will pay to the wife a sum of $312,490.
Otherwise, each of the parties is declared to be solely entitled to all real property, chattels and superannuation benefits presently in his and her respective control.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Widmann & Widmann has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2334 of 2012

Ms Widmann

Applicant

And

Mr Widmann

Respondent

REASONS FOR JUDGMENT

The proceedings

The applicant wife, Ms Widmann, and the respondent husband, Mr Widmann, are parties to litigation concerning alteration of property interests.…

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.

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Details

AGLC: WIDMANN & WIDMANN [2017] FamCA 602
Case: [2017] FamCA 602
Decision Date: 28 July 2017

CaseChat Overview and Summary

In the Family Court of Australia, Stevenson J considered a property dispute between a husband and wife who had been in a relationship for approximately 22 years and had three children. The wife sought an order for 80 per cent of the husband's one-third share of the net proceeds from a particular property. Conversely, the husband sought the dismissal of the wife's application, arguing that there was no basis for altering his legal interest in assets he acquired from his late father's inheritance, which he received approximately six years after the parties' separation.

The central legal issues before the court were whether the husband's inheritance, received post-separation, should be included in the asset pool for division, and if so, how it should be treated in determining a just and equitable distribution of the parties' property. The court was also required to consider the parties' contributions as at the date of separation and whether the adoption of a two-pool approach would lead to a fair outcome. Furthermore, the court needed to assess if any adjustments were warranted under section 75(2) of the *Family Law Act 1975* (Cth) in favour of either party.

Stevenson J reasoned that while the parties' contributions were equal as at the date of separation, a two-pool approach, which would typically separate pre-separation assets from post-separation inheritances, would not achieve a just and equitable outcome in this instance. The court found that the net assets and superannuation should be divided 65 per cent in favour of the husband and 35 per cent in favour of the wife. No reason was found to make an adjustment in favour of either party based on the section 75(2) factors.

Consequently, the court ordered the husband to pay the wife a sum of $312,490 within three calendar months of the date of the orders. Otherwise, each party was declared solely entitled to all real property, chattels, and superannuation benefits then in their respective control.

Orders

Orders of the court

Within three (3) calendar months of the date of these Orders, the husband will pay to the wife a sum of $312,490.

Otherwise, each of the parties is declared to be solely entitled to all real property, chattels and superannuation benefits presently in his and her respective control.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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