WOODBRIDGE & WOODBRIDGE - [2014] FCCA 1401

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOODBRIDGE & WOODBRIDGE

[2014] FCCA 1401

Catchwords:
FAMILY LAW – Property adjustment – marriage of modest length – considerations regarding contributions – considerations regarding “Robb argument” concerning care of the Mother’s child from an earlier relationship – application for spousal maintenance (dismissed as ‘need’ not made out) – significant health issues of Wife but her use of expensive medication considered by her own expert to be inadvisable – conflict between the evidence of one party and that party’s expert.

Legislation:
Family Law Act 1975, ss.72(1), 75(2), 79(2) & (4)

Bevan v Bevan (2013) 279 FLR 1; (2014) 49 Fam LR 387; (2013) FLC ¶93-545
Eliades & Eliades (1981) FLC ¶91-022
Esposito v Coster (2013) 48 Fam LR 10
Mallet v Mallet (1984) 156 CLR 605
Pierce & Pierce (1998) 24 Fam LR 377; (1998) FLC ¶92-844
Robb v Robb (1994) 18 Fam LR 489; (1995) FLC ¶92-555
Sindel v Milton [2010] FamCAFC 232
Stanford v Stanford (2012) 247 CLR 108
Walters v Walters [2007] FamCA 324
Waters & Jurek (1995) 126 FLR 311; (1995) 20 Fam LR 190; [1995] FLC ¶92-635

Applicant:

MR WOODBRIDGE

Respondent:

MS WOODBRIDGE

File Number:

CAC 767 of 2013

Judgment of:

Judge Neville

Hearing dates:

10 & 11 June 2014

Date of Last Submission:

11 June 2014

Delivered at:

Canberra

Oral reasons delivered on:

20 June 2014

REPRESENTATION

Counsel for the Applicant:

Ms J Godtschalk

Solicitors for the Applicant:

Watts McCray, Canberra

Counsel for the Respondent:

Mr C Wilson

Solicitors for the Respondent:

Pogson Cronin, Lavington, NSW

ORDERS

BY CONSENT, THE COURT ORDERS THAT:

Forthwith each party is hereby restrained from drawing funds from the (omitted) Bank loan account being account name "(omitted).", client number (omitted), save that the husband has liberty to pay the expenses associated with the Property S and Property G properties and the Property S Company Pty Ltd, including but not limited to interest due on the (omitted) Bank Loan, insurance and rates as they become payable from that account up to the limit of the loan facility.
The properties known as Property S and Property G be sold and that following the sale of those properties, after the deductions referred to in Order 3 below, the sum of $200,000 be placed in an interest bearing deposit to be used solely for the payment of school fees for the parties' son X, with the parties to be joint signatories for all withdrawals for this purpose, and in the event that the funds are not used for whatever reason, the balance will be withdrawn and divided equally between the parties.

THE COURT ORDERS THAT:

The net proceeds of sale of the properties known as Property S and Property G, in the State of New South Wales, be distributed as follows:
(a)To pay all costs, commissions and expenses of the sale;
(b)To pay the usual rates and conveyancing adjustments;
(c)To pay the amount required to discharge the joint (omitted) Bank loan account;
(d)To pay the…

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: WOODBRIDGE & WOODBRIDGE [2014] FCCA 1401
Case: [2014] FCCA 1401
Decision Date: 20 June 2014

CaseChat Overview and Summary

In the matter of *Woodbridge & Woodbridge*, Judge Neville of the Family Court of Australia considered a property adjustment dispute between a husband and wife following a marriage of modest length. The wife also sought spousal maintenance.

The court was required to determine how to adjust the parties' property interests, taking into account their respective contributions, including the husband's argument concerning the wife's care of a child from a previous relationship. Additionally, the court had to assess whether the wife had established the necessary 'need' for spousal maintenance, and to resolve conflicts between the evidence of one party and their expert witness, particularly concerning the wife's health issues and the advisability of her use of expensive medication.

The court's reasoning led to a consent order regarding the restraint of funds from a joint bank loan account, with liberty for the husband to pay expenses for specified properties and a company. The properties were ordered to be sold, with a portion of the proceeds to be placed in an interest-bearing deposit for their son's school fees. The net proceeds of sale were to be distributed after the discharge of various loans and chattel mortgages, with 68% allocated to the husband and the balance to the wife. The husband was also ordered to transfer a motor vehicle to the wife. The wife's application for spousal maintenance was dismissed, and each party was to retain their own property and be solely liable for their respective debts, with each party to bear their own costs unless an application was filed within seven days.

Orders

Orders of the court

BY CONSENT, THE COURT ORDERS THAT:

Forthwith each party is hereby restrained from drawing funds from the (omitted) Bank loan account being account name "(omitted).", client number (omitted), save that the husband has liberty to pay the expenses associated with the Property S and Property G properties and the Property S Company Pty Ltd, including but not limited to interest due on the (omitted) Bank Loan, insurance and rates as they become payable from that account up to the limit of the loan facility.

The properties known as Property S and Property G be sold and that following the sale of those properties, after the deductions referred to in Order 3 below, the sum of $200,000 be placed in an interest bearing deposit to be used solely for the payment of school fees for the parties' son X, with the parties to be joint signatories for all withdrawals for this purpose, and in the event that the funds are not used for whatever reason, the balance will be withdrawn and divided equally between the parties.

THE COURT ORDERS THAT:

The net proceeds of sale of the properties known as Property S and Property G, in the State of New South Wales, be distributed as follows:

(a) To pay all costs, commissions and expenses of the sale;

(b) To pay the usual rates and conveyancing adjustments;

(d) To pay the amount required to discharge the joint (omitted) Loan;

(e) To pay the amount required to discharge the (omitted) Bank Chattel Mortgage being contract number (omitted) registered over the Toyota Prado motor vehicle (registration (omitted));

(f) To pay the amount required to discharge the (omitted) Bank Chattel mortgage being contract number (omitted) registered over the Toyota Landcruiser motor vehicle (registration (omitted));

(g) To pay the sum of $200,000 into an interest bearing deposit pursuant to Order 2 above;

(h) Of the balance then remaining, 68% to the Husband; and

(i) the balance be paid to the Wife.

Within 14 days of the discharge of the Toyota Prado motor vehicle chattel mortgage pursuant to Order 3 herein, the Husband in his capacity as sole Director and shareholder of the company Property S Company Pty Ltd, do all things necessary to transfer the Prado motor vehicle being registration number (omitted) to the Wife.

The Respondent Wife's application for spousal maintenance be dismissed.

Unless otherwise specified in these Orders:

(a) Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party at the date of these Orders;

(b) Money standing to the credit of the parties in any other bank account is to remain the property of the party in whose name such bank account is held;

(c) Each party forego any claims he or she may have to any other superannuation benefits belonging to or earned by the other;

(d) Insurance policies remain the sole property of the beneficiary named therein;

(e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders or otherwise.

Absent any application filed within 7 days, each party is to pay their own costs.

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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