A and A - [2011] FCWA 98

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT : FAMILY LAW ACT 1975

LOCATION : PERTH

CITATION : A and A [2011] FCWA 98

CORAM : THACKRAY CJ

HEARD : 23 & 24 MAY 2011

DELIVERED : 14 NOVEMBER 2011

FILE NO/S : PTW 4647 of 2003

BETWEEN : Ms A

Applicant Wife
AND Mr A
Respondent Husband
AND
F Pty Ltd
Intervener

Catchwords:

PROPERTY - Settlement in relation to a long and volatile relationship - Where the wife became bankrupt on her own petition several years after separation - The parties' contributions were of roughly equivalent value had it not been for the husband's violence - The wife's contribution during the marriage were made far more difficult because of the conduct of the husband - The s 75(2) factors do not favour either party - Wife to receive a lump sum from the proceeds of the sale of the matrimonial home after certain liabilities discharged - The remaining funds from the sale of the matrimonial home to be distributed equally between the parties

Legislation:

Family Law Act 1975 (Cth), s 75(2), s 79(1)(b), s 79(4), s 79(12)

Category: Reportable

Representation:

Counsel:

Applicant : Self Represented Litigant Respondent : Self Represented Litigant Intervener : Ms Pivac

Solicitors:

Applicant : Self Represented Litigant Respondent : Self Represented Litigant Intervener :

Case(s) referred to in judgment(s):

Kennon v Kennon (1997) FLC 92-757

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1I am required to determine a property settlement dispute between [Ms A] and [Mr A] arising out of their long and volatile relationship. The parties separated more than seven years ago. The proceedings commenced more than six years ago. The case was never properly ready for trial. By the time it did reach trial, both parties were self-represented, the wife having been bankrupted by costs incurred in the litigation.

Brief background

2The husband was born in December 1945 and is therefore 65 years of age. He describes himself as a pensioner. He has been married twice before and has four adult children from those marriages.

3The wife was born in April 1950 and is therefore 61 years of age. She has also been married before, and has three adult children. She is employed as a property manager.

4The husband and wife commenced cohabitation in 1986 when the wife went to work in the hotel the husband was operating in [the country town N]. From then, until their final separation in July 2004, the parties were involved in an “on-again, off- again” relationship, which, according to the wife, was characterised by the husband’s violence and infidelity.

5The wife changed her surname to the husband’s name soon after they commenced their relationship, however, they did not marry until July 1996. I accept the wife’s evidence that she changed her name because the husband was not free to remarry at the time, and he felt it would be better for business…

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: A and A [2011] FCWA 98
Case: [2011] FCWA 98
Decision Date: 14 NOVEMBER 2011

CaseChat Overview and Summary

The case of A and A involved a dispute over the settlement of property following the separation of the parties. The wife had petitioned for bankruptcy several years after their separation. The primary issue before the court was to determine the respective contributions of the parties to the marriage and how these should be valued in light of the husband's violence and the wife's subsequent financial difficulties. The court had to consider various factors under section 75(2) of the relevant legislation to determine the appropriate division of the matrimonial assets.

The court found that the contributions of the parties were of roughly equivalent value, had it not been for the husband's violence which significantly impacted the wife's ability to contribute to the marriage. The conduct of the husband had made the wife's contributions during the marriage far more difficult. The court concluded that the section 75(2) factors did not favour either party. The wife was to receive a lump sum from the proceeds of the sale of the matrimonial home, after certain liabilities were discharged. The remaining funds from the sale of the matrimonial home were to be distributed equally between the parties.

The court's reasoning was based on the significant impact of the husband's violence on the wife's ability to contribute to the marriage and the rough equivalence of the parties' contributions. The court's decision reflected a balanced approach to the division of the matrimonial assets, taking into account the unique circumstances of the case. The final orders were that the wife would receive a specified lump sum from the proceeds of the sale of the matrimonial home, with the remaining funds to be distributed equally between the parties.

Orders