FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Woolly & Woolly (No 2) [2024] FedCFamC2F 952
File number(s): MLC 12173 of 2018 Judgment of: JUDGE HARLAND Date of judgment: 25 July 2024 Catchwords: FAMILY LAW – property – no appearance by the husband – matter proceeding on an undefended basis – where the matter has been on foot since 2021 – where there have been significant delays in the finalisation of the property proceedings due to the conduct of the husband
FAMILY LAW -practice and procedure– leave to proceed out of time – costs – considerations of indemnity costs – ordered to pay costs
Legislation: Family Law Act 1975 (Cth) ss. 44, 44(6), 75(2), 79(1), 79(2), 79(4), 117(1), 117(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r.12.17, Schedule 1
Cases cited: Aleksovski v Aleksovski [1996] FamCAFC 111
Buckley & Buckley [2013] FamCAFC 150
Chang & Su [2002] FamCA 156
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Dickons & Dickons [2012] FamCAFC 154.
Gallo & Dawson (1990) 93 ALR 479
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Kohan & Kohan (1993) FLC 92-340
Woolly & Woolly [2022] FedCFamC2F 620
Woolly & Woolly [2023] FedCFamC1F 632
Prantage & Prantage (2013) FLC 93-544.
Sharp & Sharp [2011] FamCAFC 150
Stanford v Stanford (2012) 247 CLR 108
Whitford & Whitford (1979) FLC 90-612
Yunghanns & Yunghanns [2000] FamCA 681
Division: Division 2 Family Law Number of paragraphs: 81 Date of hearing: 28 June 2024 Place: Melbourne Counsel for the Applicant Mr Tesoriero Solicitor for the Applicant Sayer Jones The Respondent No appearance by the Respondent ORDERS
MLC 12173 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WOOLLY
ApplicantAND: MR WOOLLY
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
25 JULY 2024
THE COURT ORDERS THAT:
1.The Response to Application for Final Orders filed 22 November 2021 be struck out.
2.Leave is granted to the wife to proceed on an undefended basis.
3.Pursuant to section 44 of the Family Law Act 1975, leave is granted to the wife to proceed out of time.
4.Within 28 days, the husband do all acts and things to pay the sum of $200,000 to the wife by way of direct deposit into the wife’s solicitors’ trust account (BSB: …03; account number: …27).
5.In accordance with Order 3 of the Orders made by Justice Carter on 1 August 2023, within 14 days, the husband do all acts and things to pay the sum of $20,000 to wife by way of direct deposit into the wife’s solicitors’ trust account (BSB: …03; account number: …27).
6.Save as otherwise provided herein, the wife retain for her sole use and benefit, to the exclusion of the husband:
(a)the real property;
(b)her personal savings and bank accounts;
(c)her superannuation entitlements; and
(d)all personal property currently in her possession.
7.Save as otherwise provided herein, the husband retain for his sole use and benefit, to the exclusion of…
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CaseChat Overview and Summary
The court addressed the issue of leave to proceed out of time and on an undefended basis, noting the husband's absence and the delays caused by his conduct. The court found that it was appropriate to grant the wife leave to proceed in these circumstances. The court also considered the appropriate division of property, taking into account the contributions and needs of both parties, as well as the husband's obstructive conduct. The court ordered that the husband pay the wife $200,000 and $20,000 from previous orders, retain certain property for his benefit, and indemnify the wife against various debts and liabilities. The wife was to retain other specified property and indemnify the husband similarly. The court further ordered that each party be solely liable for their own debts and indemnify the other against liabilities encumbering their property. Finally, the court ordered the husband to pay the wife's costs of $50,000. All other applications were dismissed.
In summary, the court granted the wife leave to proceed out of time and on an undefended basis, ordered specific payments and property division, and required the husband to indemnify the wife against certain debts and liabilities. The court also ordered the husband to pay the wife's costs of the proceedings.
Orders
Orders of the court
MLC 12173 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS WOOLLY
Applicant
AND:
MR WOOLLY
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
25 JULY 2024
THE COURT ORDERS THAT:
1. The Response to Application for Final Orders filed 22 November 2021 be struck out.
2. Leave is granted to the wife to proceed on an undefended basis.
3. Pursuant to section 44 of the Family Law Act 1975, leave is granted to the wife to proceed out of time.
4. Within 28 days, the husband do all acts and things to pay the sum of $200,000 to the wife by way of direct deposit into the wife’s solicitors’ trust account (BSB: …03; account number: …27).
5. In accordance with Order 3 of the Orders made by Justice Carter on 1 August 2023, within 14 days, the husband do all acts and things to pay the sum of $20,000 to wife by way of direct deposit into the wife’s solicitors’ trust account (BSB: …03; account number: …27).
6. Save as otherwise provided herein, the wife retain for her sole use and benefit, to the exclusion of the husband:
(a) the real property;
(b) her personal savings and bank accounts;
(c) her superannuation entitlements; and
(d) all personal property currently in her possession.
7. Save as otherwise provided herein, the husband retain for his sole use and benefit, to the exclusion of the wife:
(a) his part property settlement, in the sum of $40,000;
(b) his motor vehicle;
(c) his personal savings and bank accounts;
(d) his superannuation entitlements; and
(e) all personal property currently in his possession.
8. As a separate and ongoing obligation, the wife do all necessary acts and things and sign all such documents as may be required to pay and indemnify and keep the husband indemnified, in relation to all debts, liabilities, interests, costs or outgoings in relation to:
(a) any and all creditors of the wife, and/or her related entities;
(b) any and all borrowings of the wife, and/or her related entities;
(c) any and all of the wife’s taxation liabilities, and/or those of her related entities in any jurisdiction and any interests, costs (including accounting costs) or penalties applicable thereto;
(d) any and all hire purchase and/or liabilities in respect of any assets owned by the wife, and /or her related entities;
(e) any and all other debt and/or liability of whatever nature in respect of the wife, and/or her related entities; and
(f) any personal guarantees given by the Husband in respect of the debts of the wife, and/or her related entities.
9. As a separate and ongoing obligation, the husband do all necessary acts and things and sign all such documents as may be required to pay and indemnify and keep the wife indemnified, in relation to all debts, liabilities, interests, costs or outgoings in relation to:
(a) any and all creditors of the husband, and/or his related entities;
(b) any and all borrowings of the husband, and/or his related entities;
(c) any and all of the husband’s taxation liabilities, and/or those of his related entities in any jurisdiction and any interests, costs (including accounting costs) or penalties applicable thereto;
(d) any and all hire purchase and/or liabilities in respect of any assets owned by the husband, and/or his related entities;
(e) any and all other debt and/or liability of whatever nature in respect of the husband, and/or his related entities; and
(f) any personal guarantees given by the wife in respect of the debts of the husband, and/or his related entities.
10. Unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Orders:
(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b) money standing to the credit of the parties in any bank account is to become the property of the party in whose name the account is in;
(c) each party to forego any claims that they may have to Superannuation Benefits belonging to or earned by the other;
(d) insurance policies remain the sole property of the owner 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; and
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
11. The husband pay the wife’s costs of and incidental to these proceedings of $50,000.
12. All extant applications are dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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