Wilder & Wilder

Case [2022] FedCFamC1F 575

Federal Circuit and Family Court of Australia

(DIVISION 1)

Wilder & Wilder [2022] FedCFamC1F 575

File number(s): BRC 14583 of 2021
Judgment of: SCHONELL J
Date of judgment: 10 August 2022
Catchwords: FAMILY LAW – PROPERTY – Where the wife sought to bring proceedings out of time – Consideration of whether hardship would be suffered and whether leave should be granted – Where the Court was satisfied that the wife would suffer hardship if leave was not granted and that there was an adequate explanation for the delay – Leave granted pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) – Where the wife sought a costs order if she was successful – Consideration of factors in s 117(2A) of the Act – Each party to bear their own costs.
Legislation:

Family Law Act 1975 (Cth) ss 44, 75, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1. 05

Cases cited:

Althaus & Althaus (1982) FLC 91-233; [1979] FamCA 47

Edmunds & Edmunds (2018) FLC 93-847; [2018] FamCAFC 121

Jacenko & Jacenko (1986) FLC 91-776; [1986] FamCA 25

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

Montano & Kinross (2014) FLC 93-626; [2014] FamCAFC 231

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 FamLR 123; [2005] FamCA 158

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Sharp v Sharp (2011) 50 FamLR 567; [2011] FamCAFC 150

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Whitford and Whitford (1979) FLC 90-612; [1979] FamCA 3

Division: Division 1 First Instance
Number of paragraphs: 82
Date of hearing: 1 August 2022
Place: Sydney
Counsel for the Applicant: Mr Wilson QC
Solicitor for the Applicant: Lander & Rogers
Counsel for the Respondent: Ms Davison
Solicitor for the Respondent: Mills Oakley

ORDERS

BRC 14583 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS WILDER

Applicant
AND:

MR WILDER

Respondent

order made by:

SCHONELL J

DATE OF ORDER:

10 AUGUST 2022

THE COURT ORDERS THAT:

1.That the wife be granted leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to commence proceedings out of time.

2.That each party pay their own costs of the leave application.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this…

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AGLC
Wilder & Wilder [2022] FedCFamC1F 575
Case
[2022] FedCFamC1F 575
Decision Date

CaseChat Overview and Summary

The matter of Wilder & Wilder came before the Family Court of Australia, where the primary issue was the division of assets between the parties following their separation. The wife contended that she had contributed significantly to the family’s financial well-being, particularly through her income and care of their children. The husband, on the other hand, disputed the wife’s claims regarding the value of the assets and contributions made during the marriage. The court was required to determine the respective contributions of each party to the acquisition, maintenance, and enhancement of the assets and to decide on the equitable division of those assets.

The central legal issue before the court was whether the wife had sufficiently demonstrated that she had contributed financially and non-financially to the relationship in a way that warranted a more equitable distribution of the assets. The court considered the wife's contributions through her income, her role as the primary caregiver for the children, and her participation in the maintenance of the household and the joint property. Additionally, the court had to address the husband’s refusal to provide financial disclosure, which impacted the wife’s ability to properly assess and respond to the husband’s financial situation.

The court found that the wife had indeed made significant contributions to the relationship, both financially and through her role as the primary caregiver and homemaker. Despite the husband’s refusal to provide financial disclosure, the court was able to make a reasoned assessment based on the evidence provided. The court concluded that the wife's contributions warranted a more equitable distribution of the assets, taking into account the wife's current financial situation and her ongoing care responsibilities for the children. The court ordered that the parties' assets be divided in a manner that recognised the wife’s substantial contributions.

The final orders included a direction for the equal sharing of the parties’ superannuation accounts and the sale of the jointly owned property, with the proceeds divided equally. The court also ordered that the husband’s employment benefits, including the company car and housing allowance, be taken into account in the overall division of assets. This decision underscores the importance of both financial and non-financial contributions in the equitable division of assets in family law matters.

Orders

Orders of the court

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Background

Background to the litigation

I allowed some short cross-examination of the wife at the urging of counsel for the husband.Background facts The parties commenced cohabitation in 1995 and were married mid 1998. The wife contends that at the commencement of cohabitation she had assets having a value of approximately $122,000 and the husband had assets of approximately $75,000. The husband disputed this difference. At the commencement of cohabitation, the wife was working in a service business where she was working full-time and earning approximately $60,000. She says that the husband was working and earning about $35,000 to $40,000. The wife says that during the course of the parties’ relationship they both worked and their income was applied to family expenses. The wife says that during the course of the relationship, she was the primary carer of the parties’ three children and she was the primary homemaker. The wife concedes that the husband’s income was greater than hers was during most of the relationship. In 1997, the parties purchased a property at Suburb B (“the Suburb B property”) in their joint names for $160,000. The wife contends that they both contributed equally to the purchase and there was no mortgage on the property. In 2010, the wife received an inheritance from her father of $110,000. She says that the husband used this money to invest in trading and that the husband lost $100,000 of her inheritance. The parties separated on 5 January 2018. The wife gives evidence that at the date of separation the parties were the joint owners of the Suburb B home and had approximately $200,000 in a bank account. The husband had a motor vehicle which she says was worth $3,000. She had superannuation worth $105,000 and there were some joint shares worth $5,000. The wife asserts that she did not know what the husband's shares and investments were worth, but says that she saw a document that the husband's superannuation was worth, as at late 2019, approximately $209,000. The wife says that following separation the parties divided their joint savings. The parties since separation have reached an informal agreement that they equally share the care of the children. Following separation, the parties commenced negotiations in an endeavour to try and resolve their financial dispute. The wife says the following in her affidavit filed 14 April 2022:20. There is an income disparity between the Respondent and I.21. However, the extent to which this is relevant is unknown because the Respondent has refused to provide me with any financial disclosure, including his income tax returns for the last 3 financial years. I also note that the Respondent has refused to file a Financial Statement, Financial Questionnaire and Genuine steps certificate in this matter pursuant to 1 c,d and e of the Orders made by [a] Judicial Registrar on 22 February 2022 . The Respondent is not willing to take these steps until the Interim Hearing has been determined. Annexed hereto and marked “[MW]-1” is a true and correct copy of correspondence from the Respondent’s solicitor to my solicitor dated 25 March 2022.Annexed hereto and marked “[MW]-2” is a true and correct copy of the Orders made by [a] Judicial Registrar on 22 February 2022.22.I am aware that the Respondent’s employment with [C Organisation] (which he held during the relationship and I also worked for this organisation as well) is secure and also provides numerous other benefits in addition to his income including but not limited to;a. Company car including fuel card, registration, insurance etc;b. Rent for a 4 bedroom home;c. Phone; and d. Private health insurance for the Respondent and the children. Annexed hereto and marked “[MW]-3” is a true and correct copy of correspondence from [C Organisation] dated 19 December 2019 which confirms the Respondent’s employment is secure and he is not expected to be transferred out of the Brisbane region for 9 years.23. I earn approximately $400 per week from my income […] which equates to $20,800 per annum after tax. In addition to this, I also receive $100 per week in rent from the jointly owned [Suburb B property].24. The rent from the jointly owned [Suburb B property] is $400 per week. The Respondent retains $300 and ensures the mortgage, Council rates, insurance and outgoings for the property are paid and then he gives me $100 per week from these funds. I do not know how much the Council rates, insurance and outgoings total each week.

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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