WOOLWICH & WOOLWICH - [2014] FamCA 1253

FAMILY COURT OF AUSTRALIA

WOOLWICH & WOOLWICH

[2014] FamCA 1253

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the husband and wife cohabited for almost 17 years and raised two children to adulthood – Where the contributions at separation were equal – Where the wife had almost the entirety of the physical care of the children post separation – Where the wife has borne much of the financial burden of the children post separation – Where the wife has paid substantial amounts in mortgage repayments and costs of maintenance on the former matrimonial home since separation – Where the wife’s post separation contributions outweigh the husband’s – Where overall contributions are found to be 55 per cent to the wife and 45 per cent to the husband – Where the husband has a higher capacity to earn income in future – Where the husband failed to make a full and frank disclosure – Where a 5 per cent s 75(2) adjustment is appropriate in favour of the wife – Where an order is made for the wife to receive 60 per cent and the husband to receive 40 per cent of the available property and superannuation.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband sought leave to re-open the case to adduce fresh evidence as to the value of the former matrimonial home – Where the husband offered no evidence in admissible form – Where a substantial prejudice would flow to the wife – Where the husband’s application was dismissed.

Family Law Act 1975 (Cth) – s 75(2); s 79

Aheb & Aheb(No 3) [2009] FamCA 524
Black and Kellner (1992) FLC 92-287
Elgin & Elgin(Re-opening) [2012] FamCA 898
Emmett & Emmett [2010] FamCA 56
Gelley & Gelley (1992) FLC 92-290
Reid v Brett (2005) VSC 18 (8 February 2005)
Smith v NSW Bar Association (1992) 176 CLR 256
Stanford v Stanford (2012) FLC 93-518
Summitt & Summitt & Ors(Re-opening) [2009] FamCA 365
Weir and Weir (1993) FLC 92-338

APPLICANT:

Ms Woolwich

RESPONDENT:

Mr Woolwich

FILE NUMBER:

SYC

1583

2010

DATE DELIVERED:

30 October 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

4 & 5 November 2013 and 24 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell, SC

SOLICITOR FOR THE APPLICANT:

Abrams Turner Whelan Family Lawyers

FOR THE RESPONDENT:

Mr Woolwich in person

Orders

That the husband and the wife forthwith do all things and sign all documents necessary to sell the former matrimonial home at V Road, Suburb B in the State of New South Wales more fully described in Certificate of Title Folio Identifier … by way of public auction on the following terms:
(a)That the property be placed on the market for sale by auction within 100 days of the date of these orders;
(b)That such an auction take place within six weeks from the date of placing the property for sale by public auction or as soon as practicable…

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: WOOLWICH & WOOLWICH [2014] FamCA 1253
Case: [2014] FamCA 1253
Decision Date: 30 October 2014

CaseChat Overview and Summary

This case concerned a property settlement dispute between a husband and wife who had cohabited for almost 17 years and raised two adult children. The primary dispute revolved around the division of their assets, including the former matrimonial home. The court was also required to consider an application by the husband for leave to re-open the case to adduce fresh evidence regarding the valuation of the former matrimonial home.

The court was tasked with determining the appropriate division of the parties' property and superannuation, taking into account their contributions during the marriage and post-separation. Specifically, the court needed to assess whether the wife's post-separation contributions, including significant mortgage repayments and maintenance costs for the former matrimonial home, outweighed the husband's contributions. Furthermore, the court had to consider the husband's failure to make full and frank disclosure and its impact on the property division, as well as the husband's future earning capacity. The court also had to decide whether to grant the husband leave to adduce fresh evidence, considering the potential prejudice to the wife and the lack of admissible evidence presented by the husband.

Johnston J found that while the parties' contributions at separation were equal, the wife's post-separation contributions, particularly in relation to the former matrimonial home and the financial burden of the children, outweighed those of the husband. Consequently, the court determined that overall contributions were 55 per cent to the wife and 45 per cent to the husband. The court also applied a 5 per cent adjustment in favour of the wife under section 75(2) of the Family Law Act 1975 (Cth) due to the husband's failure to make full and frank disclosure and his higher future earning capacity. The husband's application to re-open the case was dismissed due to the lack of admissible evidence and the substantial prejudice it would cause the wife.

The court ordered that the former matrimonial home be sold by public auction, with specific terms and timelines outlined for the sale and any subsequent auction if the reserve price was not met. The proceeds of sale were to be applied to various expenses, including agent commissions, legal costs, outstanding loans, and school fees, before being distributed between the parties. Ultimately, the wife was to receive 60 per cent and the husband 40 per cent of the available property and superannuation. The court also made orders regarding the division of other assets and liabilities, the closure of joint bank accounts, and the release of exhibits.

Orders

Orders of the court

That the husband and the wife forthwith do all things and sign all documents necessary to sell the former matrimonial home at V Road, Suburb B in the State of New South Wales more fully described in Certificate of Title Folio Identifier … by way of public auction on the following terms:

(a) That the property be placed on the market for sale by auction within 100 days of the date of these orders;

(b) That such an auction take place within six weeks from the date of placing the property for sale by public auction or as soon as practicable thereafter;

(c) That the agent be as agreed between the parties or failing agreement for more than seven days, as appointed by the President for the time being of the New South Wales Division of the Australian Property Institute;

(d) That the reserve price for such auction be as agreed between the parties or failing agreement for more than seven days, as determined by the selling agent;

(e) That the parties pay all auction expenses as requested by the selling agent as and when they fall due;

(f) That the parties shall do all things necessary or recommended by the selling agent to properly present the property for sale and to make the property available for inspection by prospective purchasers;

(g) That either party be at liberty to bid for the purchase of the property at the auction; and

(h) That the parties shall attend the auction and, if necessary, negotiate with the highest bidder at the auction if the reserve price is not reached.

That in the event that the property does not reach the reserve price and the parties are unable to negotiate an agreed sale price with the highest bidder at the auction then the parties shall do all things and sign all documents necessary to cause the property to be sold by way of subsequent auction on the following terms:

(a) That the auction take place within six weeks of the date of the last auction;

(b) That the agent be as agreed between the parties or failing agreement for more than seven days, as appointed by the President for the time being of the New South Wales Division of the Australian Property Institute;

(c) That the reserve price for such subsequent auction be an amount that is 5 per cent lower than the previous reserve price;

(d) That the parties pay equally all auction expenses as requested by the selling agent as and when they fall due;

(e) That the parties shall do all things necessary or recommended by the selling agent to properly present the property for sale and to make the property available for inspection by prospective purchasers;

(f) That either party be at liberty to bid for the purchase of the property at the auction;

(g) That the parties shall attend the auction and, if necessary, negotiate with the highest bidder at auction if the reserve price is not reached.

That in the event that a purchaser for the former matrimonial home is not found within six months of the date the property is listed for sale or as otherwise agreed, the parties shall do all things and sign all documents necessary to list the property for sale by public auction at an agreed price.

That in the event that the parties are unable to agree upon an auctioneer, the auctioneer shall be nominated by the Real Estate Agent marketing the property.

That the proceeds of sale of the said former matrimonial home be paid as follows:

(a) To pay agent’s commission and costs of sale including legal costs on sale;

(b) To pay out the joint National Australia Bank (“NAB”) home loan (approximately $219,948) and the husband’s residual debt (approximately $314,011);

(d) To pay the outstanding balance as follows:

(i) 67.034 per cent less the amount outstanding to K School (approximately $12,366) to the wife;

(ii) 32.966 per cent less the amount outstanding to the NAB (loan account no …84) being the husband’s personal loan for G’s school fees (approximately $78,549) to the husband;

(iii) The amount outstanding to K School is to be paid to K School; and

(iv) The amount outstanding to the NAB on loan account no …84 is to be paid to the NAB.

That upon payment of NAB loan account no …84 the husband is to procure for the wife a release of her guarantee in relation to the said loan.

That within forty-two (42) days the husband and the wife do all acts and things and sign all documents necessary to close any joint bank accounts held by them with the NAB and divide the proceeds thereof equally between them.

That the husband is otherwise entitled to retain sole legal and beneficial ownership to the exclusion of the wife of:

(a) his interests in:‑

(i) O Pty Limited;

(ii) the Woolwich Family Trust;

(iii) A Pty Limited;

(iv) Q Limited;

(v) S Business (US);

(vi) W Services

(b) his interests in overseas real estate at …;

(d) any entitlements under any superannuation fund of which he is or has been a member; and

(e) all other items of property and personalty including motor vehicles, bank accounts, money, shares, jewellery and personal effects presently in his possession, custody or control.

That the wife is otherwise entitled to retain sole legal and beneficial ownership to the exclusion of the husband of:

(a) her Telstra shares;

(b) any entitlements under any insurance policies or superannuation funds in which she has an interest; and

(c) All other items of property and personalty including motor vehicles, bank accounts, money, shares, jewellery and personal effects presently in her possession, custody or control.

10.

That otherwise than as provided above, the husband and the wife shall be and remain liable for any debts in his or her own name at the date of these orders and in this respect shall indemnify and hold harmless the other from any liability in relation thereto.

11.

That in the event that either party refuses or neglects to execute any deed, document or instrument to give effect to these orders within fourteen (14) days of such document being tendered for signature, the Registrar of the Family Court of Australia, Sydney is hereby appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute any such deed, document or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of any such deed, document or instrument and for the purposes of this order a party shall be deemed to have refused or neglected to execute any such deed, document or instrument if the said deed, document or instrument is not returned to the submitting party within fourteen (14) days of the said document being forwarded to the other party's solicitor by document exchange or to the other party by ordinary mail.

12.

That both parties have leave to re-list these proceedings in relation to the implementation of these orders by arrangement with my Associate […].

13.

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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