Wilde & Wilde

Case [2007] FamCA 1044

FAMILY COURT OF AUSTRALIA

WILDE & WILDE [2007] FamCA 1044

FAMILY LAW - APPEAL - SECTION 79 PROPERTY PROCEEDINGS - ASSERTED LACK OF FULL FRANK AND COMPLETE DISCLOSURE - Third trial of property proceedings between parties after two successful appeals - Whether trial Judge erred in exercise of discretion in finding husband had failed to make a full, frank and complete disclosure of his financial circumstances - Where payments made by husband to his daughter of previous marriage - Where losses incurred by derivatives trading resulting in losses inter alia to superannuation fund - Where husband alleged to have filed contradictory financial statements - Trial Judge made credit findings and accepted husband’s evidence - No error by trial Judge in exercise of discretion.

FAMILY LAW - APPEAL - PROPERTY – “ADD BACKS” - Whether trial Judge erred in failing to add back to the pool of property notional assets, and or erred in respect of adding back items of expenditure by the wife post separation - Whether trial Judge erred in his treatment of husband’s paid legal fees, drawings from business, payments to his brother, losses incurred in trading in derivatives and payments to his daughter from previous marriage - Where legal fees taken up in other “add backs” - Where no adverse credit findings made against husband - Where funds paid to brother derived from inheritance - Whether trial Judge in error in “adding back” wife’s post separation expenditure from part proceeds of sale of her property acquired pre-cohabitation - Where wife provided no breakdown of her reasonable living expenses post separation and trial Judge took into account her expenditure when considering adjustment under s75(2) - No appealable error found.

FAMILY LAW - APPEAL – PROPERTY - VALUATION -Whether trial Judge erred in determination of the value of the husband’s veterinary practice – Where multiple valuations - Where valuation methods differed – Where capitalisation of future maintainable profits valuation method used – Where alternative valuation method of comparable sales and analysis of actual performance of the practice - Where trial Judge made findings of lack of objectivity by wife’s expert – Where trial Judge rejected valuation on a “potential” value basis - Examination of commonly used valuation methods – Trial Juge applied recognised principles to valuation of the business - No appealable error found.

FAMILY LAW - APPEAL – PROPERTY - CONTRIBUTIONS -Whether trial Judge erred in overall assessment of contributions - Whether trial Judge erred in assessing initial contributions – Trial Judge’s assessment of equal contribution available on the evidence.

FAMILY LAW - APPEAL – SECTION 75(2) FACTORS -  Whether trial Judge erred in assessment of relevant factors in making s 75(2) adjustment – Whether trial Judge gave insufficient weight to findings of fact regarding wife’s capacity for employment – Where no medical or expert evidence adduced to establish employment capacity – No error by trial Judge in making adjustment under s 75(2).

FAMILY LAW - APPLICATION TO EXTEND TIME TO APPEAL VARIATION OF ORDERS UNDER THE SLIP…

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AGLC
Wilde & Wilde [2007] FamCA 1044
Case
[2007] FamCA 1044
Decision Date

CaseChat Overview and Summary

The case of Wilde & Wilde involved an appeal to the Full Court of the Family Court of Australia concerning property settlement orders made after a third trial. The primary dispute revolved around the husband's alleged failure to make full and frank financial disclosure, the treatment of various asset "add backs" and expenditures, the valuation of the husband's veterinary practice, the assessment of contributions, and the application of section 75(2) factors. The husband also sought to extend time to cross-appeal certain orders.

The court was required to determine whether the trial judge erred in exercising discretion regarding the husband's disclosure, specifically concerning payments to his daughter and losses from derivatives trading. Further issues included whether the trial judge erred in failing to "add back" notional assets or in adding back the wife's post-separation expenditure, and the correct treatment of the husband's legal fees, business drawings, payments to his brother, derivatives trading losses, and payments to his daughter. The valuation of the husband's veterinary practice, the overall assessment of contributions, and the application of section 75(2) factors were also central to the appeal. Finally, the court considered the husband's application to extend time to appeal, including whether the trial judge erred in applying the slip rule.

The court found no appealable error in the trial judge's exercise of discretion regarding the husband's disclosure, noting that credit findings were made in favour of the husband. Regarding "add backs," the court observed that legal fees were accounted for elsewhere, payments to the husband's brother were from an inheritance, and the wife's post-separation expenditure was considered in the context of section 75(2) adjustments. The valuation of the veterinary practice was deemed to have applied recognised principles, with the trial judge making findings of lack of objectivity regarding the wife's expert. The assessment of contributions was found to be available on the evidence, and the section 75(2) adjustment was made without error, particularly as there was no expert evidence to establish the wife's employment capacity. The husband's application to extend time to cross-appeal was dismissed, as the proposed grounds did not demonstrate a likely prospect of success, including the assertion of a "double count" of legal fees.

The Full Court dismissed the husband's application for an extension of time to appeal. The court found no error in the trial judge's application of the slip rule, nor did it find any basis for estoppel against the wife. Consequently, the appeal and cross-appeal were dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In his submissions on the appeal the husband further said, it appears referring to the valuation of his veterinary practice, that while this issue may be an error of fact, it was “still within His Honour’s discretion to make such a finding and that it was an insufficient reason to appeal the judgment. The respondent relies on Pearce & Pearce [sic]”. In summary the husband submitted “Conclusion: In relation to all of Ground 2, a wealth of evidence was considered and His Honour’s judgment should be upheld as being within the bounds of his discretion” (husband’s submissions, page 7, original emphasis). As will be apparent when we deal with the husband’s application for an extension of time to cross appeal, the husband changed his position after the filing of these submissions, and asserted the trial Judge was in error in respect of both his findings as to the parties’ assets at the commencement of cohabitation, and the weight afforded by his Honour to the initial contributions. In his reasons for judgment, the trial Judge identified, in the list of issues to be determined, the issue of the parties’ initial contributions. The trial Judge found the parties lived together on a full time basis from about June 1991. Thereafter the trial Judge recorded each party’s assertions about their initial contributions. His Honour noted that the husband claimed to have had $118,369.00 in savings at the commencement of cohabitation. He further noted that the husband relied on a schedule annexed to his affidavit and that the husband tendered a folder of documents to support the assertions in the table prepared by him. The trial Judge said “[t]he problem with his assertions and his evidence is that the supporting documents are mostly not evidence of the worth of the asset at June 1991”. Thereafter the trial Judge discussed many items in the schedule including a number of term deposits with the National Mutual Royal Savings Bank Ltd, being items number 1 to 8 on the husband’s schedule of initial assets, and concluded “I think there is a probability that the earlier investments may have been incorporated in the latter or alternatively spent by the husband in the acquisition of the Subaru motor vehicle for the wife in 1991”. The trial Judge made findings that “probably the husband had item 5 in annexure “D” a deposit of $32,016.95; item 7 a deposit of $9,070; Item 8 a deposit of $4,510.35”. He also accepted the husband had a credit with NRMA of $3,480.52. Additionally he made an allowance for an insurance policy owned by the husband, a refund of his provisional tax paid for the 1991 tax year and shares in News Corp. His Honour found “[a]dding all those allowances therefore the total is about $75,618 as evidenced by the documents produced by the husband”. The trial Judge made two significant findings. First, he recorded “I base my findings on the observations made by me of the husband when he was cross-examined by the wife on these amounts and my assessment of the credit of the husband as a whole”. He also said “I do not think it is reasonable to conclude that unless the husband can produce a document to substantiate a liquid asset, at the date of cohabitation, then he should not be given credit for it”. The trial Judge determined that the husband had liquid assets of approximately $70,000.00, a sum he derived after deducting from the husband’s schedule rejected items and the sum of $10,000.00 paid by the husband to his former wife in September 1991.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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