FAMILY COURT OF AUSTRALIA
| WILLMAN & WILLMAN | [2010] FamCA 424 |
| FAMILY LAW – PROPERTY – Settlement in relation to marriage – Initial contributions |
| Family Law Act 1975 (Cth) ss 75(2), 79 |
| Lee Steere and Lee Steere (1985) FLC 91-626 Ferraro and Ferraro (1993) FLC 92-335 Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355 Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414 Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693 Crawford and Crawford (1979) FLC 90-647 White and White (1982)FLC 91-246 Money and Money (1994) FLC 92-485 Pierce and Pierce (1999) FLC 92-844 Cabbell and Cabbell [2009] FamCAFC 205 |
| APPLICANT: | Ms Willman |
| RESPONDENT: | Mr Willman |
| FILE NUMBER: | SYC | 2247 | of | 2009 |
| DATE DELIVERED: | 16 April 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston JR |
| HEARING DATE: | 30 & 31 March 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kearney |
| SOLICITOR FOR THE APPLICANT: | Dimocks Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Livingstone |
| SOLICITOR FOR THE RESPONDENT: | Bull Son & Schmidt |
Orders
That the husband and wife do all things and sign all documents necessary to divide the funds currently held on trust for the parties in a controlled money account as follows:
-76.732% to the wife;
-The balance then remaining to the husband.
That within 14 days of the date of these orders, the husband shall do all things and sign all documents necessary to:
-transfer the registration of the 2007 Toyota Yaris motor vehicle into the sole name of the wife; and
-transfer to the wife all interest in the accounts in the joint names of the parties with each of TSB Permanent, AMP Bank and ANZ Bank.
That the husband shall be entitled, as between the parties, to all monies due in respect of the loan by the husband and wife to the husband’s mother.
That the parties divide the contents of the storage unit and the contents currently in storage in the garage belonging to the husband’s mother and located at L between them equally by agreement and failing agreement within 14 days of the date of these orders then:
-The wife shall prepare two lists of the said items and provide same to the husband;
-Within seven days of receipt of the lists, the husband shall select one of the lists provided and thereafter be entitled to the items set out on such list, provided that in the event that the husband fails to advise the wife of his election then the wife shall be entitled to select the list of items that she wishes to retain; otherwise the wife shall be entitled to the items set out on the list not selected by the husband;
-The wife shall be entitled to take possession of the items on the list selected by her;
and the husband shall do all things necessary to ensure that the wife is provided with access to the said garage for the purpose of removing the items to which she is entitled pursuant to this order.
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- AGLC
- Willman and Willman [2010] FamCA 424
- Case
- [2010] FamCA 424
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the equitable distribution of the parties' financial resources and personal property. This included determining the appropriate percentage split of jointly held funds, the transfer of ownership of specific vehicles and bank accounts, the entitlement to a loan made to the husband's mother, and the division of jointly stored items. The court also had to address the retention of assets held in each party's sole name, including bank accounts, shares, superannuation, and interests in estates, as well as the allocation of responsibility for existing debts.
The court's reasoning, as reflected in its orders, involved a detailed allocation of assets and liabilities. A significant portion of the funds held on trust was awarded to the wife, with the remainder going to the husband. Specific vehicles and joint bank accounts were ordered to be transferred to the wife. The husband was to receive any monies due from a loan to his mother. A specific mechanism was established for the equal division of items stored in a storage unit and a garage, involving the preparation of lists and selection by the husband. Other assets held in each party's sole name, such as bank accounts, shares, and superannuation, were to be retained by that party. The court also ordered that each party would be responsible for their own debts and would indemnify the other against any liabilities. To ensure compliance, the court stipulated that a Registrar could execute documents if a party refused to do so, and the orders were to take effect from a specified future date.
Orders
Orders of the court
1.
That the husband and wife do all things and sign all documents necessary to divide the funds currently held on trust for the parties in a controlled money account as follows:
- 76.732% to the wife;
- The balance then remaining to the husband.
2.
That within 14 days of the date of these orders, the husband shall do all things and sign all documents necessary to:
- transfer the registration of the 2007 Toyota Yaris motor vehicle into the sole name of the wife; and
- transfer to the wife all interest in the accounts in the joint names of the parties with each of TSB Permanent, AMP Bank and ANZ Bank.
3.
That the husband shall be entitled, as between the parties, to all monies due in respect of the loan by the husband and wife to the husband’s mother.
4.
That the parties divide the contents of the storage unit and the contents currently in storage in the garage belonging to the husband’s mother and located at L between them equally by agreement and failing agreement within 14 days of the date of these orders then:
- The wife shall prepare two lists of the said items and provide same to the husband;
- Within seven days of receipt of the lists, the husband shall select one of the lists provided and thereafter be entitled to the items set out on such list, provided that in the event that the husband fails to advise the wife of his election then the wife shall be entitled to select the list of items that she wishes to retain; otherwise the wife shall be entitled to the items set out on the list not selected by the husband;
- The wife shall be entitled to take possession of the items on the list selected by her;
and the husband shall do all things necessary to ensure that the wife is provided with access to the said garage for the purpose of removing the items to which she is entitled pursuant to this order.
5.
That other than as provided above, the wife as against the husband be entitled to retain as sole and beneficial owner, and the husband has no entitlement in, the following:
- all bank accounts held in the sole name of the wife;
- all shares held in the sole name of the wife;
- all superannuation entitlements held in the sole name of the wife;
- her interest in her late aunt’s estate; and
- all furniture, household contents and personal effects currently in the wife’s possession or control.
6.
That other than as provided above, the husband as against the wife be entitled to retain as sole and beneficial owner, and the wife have no entitlement in, the following:
- the 2008 Saab motor vehicle registered in the sole name of the husband;
- all bank accounts held in the sole name of the husband;
- the IGA shares held in the sole name of the husband;
- all superannuation entitlements held in the sole name of the husband;
- his one-quarter share in the property located at D; and
- all household contents, furniture and personal effects in his possession or control.
7.
That otherwise than as provided for herein, the husband and the wife shall each be entitled to retain as sole and beneficial owner all personalty and financial resources including superannuation, leave entitlements and life insurance policies presently within their respective names, possession and/or control or to which they are each entitled.
8.
That the husband and the wife shall each otherwise be and remain liable for any debts in their own name as at the date of these orders, and in this respect, shall indemnify and keep indemnified the other from any liability in relation thereto.
9.
That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then a Registrar of the Court shall be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
10.
That the wife shall ensure that she complies with her obligations pursuant to the lease to which the rental bond paid by the husband relates.
11.
That both parties have leave to re-list these proceedings on seven days notice in relation to the implementation of these orders.
12.
That the above orders not commence operation until 4 May 2010.
13.
That both parties have leave to re-list these proceedings for further submissions in relation to the form of the orders only at any time not later than 3 May 2010.
14.
That all exhibits be released.
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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