AB & ZB

[2002] FamCA 1178

[2002] FamCA 1178

FAMILY LAW ACT, 1975

FAMILY COURT OF AUSTRALIA
  No SY 6355 of 2001
AT SYDNEY

IN THE MATTER OF:           ANDREW MICHAEL BREW                   (Applicant)

AND:               ZELA BREW             (Respondent)

CORAM:  The Honourable Justice Mullane

Dates of Hearing:  18-20 November 2002
Date of Judgment:  23 December 2002
Date of Reasons for Judgment:  21 January 2003

JUDGMENT OF THE COURT

Appearances:

Mr Johnston of Counsel instructed by Messrs Briggs & Associates, Solicitors, DX  1538, Sydney, appeared for the Applicant Husband.

Mr Miller of Counsel instructed by Messrs Foster Associates, Solicitors, Suite 3, Level 13
221 Miller Street, North Sydney, NSW, 2060, appeared for the Respondent Wife.

BREW & BREW

FILE No. SY 6355 of 2001

Coram:  Mullane J

Dates of Hearing:  18-20 November 2002
Date of Judgment:  23 December 2002
Date of Reasons for Judgment:       21 January 2003

Catchwords:             PROPERTY settlement in relation to marriage – Property Division – Contribution by Third Party to welfare of family

The wife’s parents provided child minding of the children of the marriage throughout the marriage at times when the parties both undertook paid work.

At the hearing it was argued that this was a contribution under s.79(4)(c) of the Family Law Act to the welfare of the children of the marriage made on behalf of the wife or both of the parties.

HELD: 

Paragraph 79(4)(c) of the Family Law Act, 1975, unlike paras.79(4)(a) and 79(4)(b) does not specifically include contributions made on behalf of a party by some other person. The different wording is critical. Contributions made by another person on behalf of a party to the marriage to the welfare of the family, are not taken into account under para.79(4)(c).

Family Law Act (Cth) 1975, s.79
In the marriage of Pellegrino and Pellegrino (1997) FLC 92-789 discussed

In the marriage of Ricaby and Ricaby (1995) FLC 92-642 and In the marriage of Gosper and Gosper (1987) FLC 91-818 discussed and distinguished

INTRODUCTION

1. This was a defended hearing of proceedings regarding the care, welfare and development of the parties’ 2 children Gordon aged 8 (born 13 July 1994) and Fiona aged 5 (born 1 September 1997).

2. It was also a hearing of competing applications for alteration of property interests under Section 79 of the Family Law Act.

3. The applicant husband is aged 41 (born 10 April 1961) and a computer consultant.  He resides at Hornsby.  The respondent wife is aged 39 (born 9 August 1963) and a qualified dentist.  She is currently a full time homemaker and parent and resides at Wahroonga.  The parties were married on 12 October 1991 and separated on 9 December 1999.

4. The subject children are the only children of the marriage.

CHILDREN

[At paragraphs 5 to 237 his Honour set out the findings, determinations and orders in relation to the children.]

PROPERTY

[At paragraphs 238 to 270 his Honour set out provisions of Sec.79 of the Family Law Act and Subsection 75(2) of the Act, described the usual procedure in property proceedings, made findings regarding the background concerning the property issues, made findings as to the property and liabilities of the parties at the time of the hearing, set out his findings as to paid work by each of the parties, made findings regarding work done by the parties on the matrimonial home, and made findings as to the homemaking contributions.]

FINANCIAL ASSISTANCE BY THE WIFE’S PARENTS

1. The wife’s parents provided extensive financial assistance to the parties.  They lent the wife the deposit for the home ($14,000) interest free before the marriage.  They waived repayment of $4,000 of that.  They gave the wife $18,856 before the marriage to enable the parties to complete the purchase.  Five months after the marriage they lent the parties $113,974 interest free to enable them to pay out the mortgage and avoid paying future interest. 

2. All of this assistance occurred before or early in the marriage.  The transactions other than the $113,974 were with the wife alone.   There was no evidence of any circumstance, at the times the transactions occurred, concerning their relationship with or dealings with the husband to suggest that their intention in relation to any of the transactions was to benefit both the parties, rather than to benefit their daughter.  They both gave evidence in the proceedings.  Neither gave evidence of their intention in relation to any of the transactions, and neither of them was cross-examined in that regard.   On the balance of probabilities their intention in entering all of those transactions before or early in the marriage was to benefit their daughter and the contributions they made were made on her behalf.  

3. Prior to the marriage and early in the marriage the husband’s parents provided considerable assistance to the parties with the renovation and decoration of the home.  Nether of them gave any evidence as to their motivation in providing this assistance.    There was no evidence of any circumstance, at the time the assistance was provided, concerning their relationship with or dealings with the husband to suggest that their motivation was to benefit both the parties, rather than to benefit their son.   On the balance of probabilities it was a contribution on his behalf.

CHILD MINDING ASSISTANCE

1. The wife’s parents assisted the parties by minding the children frequently when the wife was working in the office of  Macquarie Groupware.   But this has not been taken into account under subsec 79(4) as a contribution on behalf of the wife or both parties.   The reason is that whereas paragraphs (a) and (b) of the subsection, which deal with contributions to property, specifically include contributions by a person on behalf of one of the parties to the marriage, paragraph (c), which is about contributions to the welfare of members of the family, does not. 

2. There was no evidence that if the assistance had not been provided, the parties would have paid to obtain such services from someone else, rather than managed without such assistance or relied upon other grandparents, relatives or friends to provide it free.  There was no evidence that the care provided made an contribution to the finances of the parties and in that way the facts are different to those in cases such as Pellegrino and Pellegrino (1997) FLC 92-789, where the waiver of rent by the wife’s parents was considered to be a contribution to the property of the parties on behalf of the wife, as has the waiver of loan interest by the wife’s parents in this case.

3. Counsel for the wife relied upon the decision of Lindenmayer J in Rickaby and Rickaby (1995) FLC 92-642. At page 82,488 His Honour held:

   The parties lived rent free with the wife’s parents from the marriage in 1971 until they moved into their North Haven property in 1978, a period of about 7 years.  In the circumstances of this case, I regard that as a significant contribution to the welfare of the family on behalf of the wife: see Gosper and Gosper (1987) FLC 91-818.

4. But in neither Gosper’s Case nor in Rickaby did the judgment acknowledge the difference in the wording I have referred to between paragraph 79(4)(c) of the Family Law Act in providing for contributions to the welfare of the family, compared with the provisions of paragraphs 79(4)(a) and (b), providing for contributions to property. Accordingly, I do not consider that either case is persuasive authority that contributions to the welfare of the family made by another person on behalf of one or both of the parties to the marriage can be taken into account under paragraph 79(4)(c).

[In paragraphs 278 to 284 his Honour summarised the contributions of the parties.  In the remainder of the Judgment he set out his findings under Subsection 75(2), the findings as to a just and equitable result under Subsection 79 (2) and the property orders.]