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B and B & Anor

B and B & Anor

Case [2008] FCWA 46 1 May 2008

Property Settlement

Contributions

Third Party Interests

Family Law

Property Law

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[2008] FCWA 46

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	B and B & ANOR [2008] FCWA 46
CORAM	:	CRISFORD J
HEARD	:	27-29 FEBRUARY & 6 MARCH 2008
DELIVERED	:	1 MAY 2008
FILE NO/S	:	PTW 3466 of 2005

BETWEEN

: B

Applicant/Wife
AND
B
First Respondent/Husband
AND
T
Second Respondent

Catchwords:

Property settlement - pool of assets - addbacks - contributions - long marriage - property
acquired with third party

Property settlement - third party interests

Legislation:

Family Law Act 1975, s 75(2), s 79, s 106B

[2008] FCWA 46

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr P Dowding SC
First Respondent	:	Ms G Braddock SC

[property number three] Respondent :

Mr J Hedges

Solicitors:

Applicant	:	Carr & Co
First Respondent	:	Dwyer Durack

[property number three] Respondent :

DCH Legal Group

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

Biltoft and Biltoft (1995) FLC 92-614
C & C [1998] FamCA 143
Ferraro and Ferraro (1993) FLC 92-335
Giumelli v Giumelli (1999) 196 CLR 101
Henderson v Miles (No 2) (2005) 12 BPR 23,579
Khademollah and Khademollah (2000) FLC 93-050
Kowaliw and Kowaliw (1981) FLC 91-092
Lenehan and Lenehan (1987) FLC 91-814
Norbis v Norbis (1986) FLC 91-712
O’Hara & O’Hara and Ors [2008] FamCA 189
Omacini and Omacini (2005) FLC 93-218
Prince and Prince (1984) FLC 91-501
Rosati v Rosati (1998) FLC 92-804
Squire v Rogers (1979) 39 FLR 106
Townsend and Townsend (1995) FLC 92-569
Westmore & Westmore [2007] FamCA 1341
White v White [2001] 1 All ER 1
Yukhnevich and Stazzonelli [2006] FCWA 98
Zyk and Zyk (1995) FLC 92-644

[2008] FCWA 46

1 [Mrs B] now almost 67 years of age and [Mr B] who is 74 years of age have asked the Court how their property should be divided.
2 The answer to that question is not always easy. As Lord Nicholls of Birkenhead in the House of Lords has said in White v White [2001] 1 All ER 1:
“Stated in the most general terms, the answer is obvious. Everyone would accept that the outcome on these matters, whether by agreement or court order, should be fair. More realistically, the outcome ought to be as fair as is possible in all the circumstances. But everyone’s life is different. Features which are important when assessing fairness differ in each case. And, sometimes, different minds can reach different conclusions on what fairness requires. Then fairness, like beauty, lies in the eye of the beholder.”

3 [Mr and Mrs B] are unable to agree not only how their property is to be divided

but just what their property comprises. Matters have been complicated by the
husband’s relationship with the second respondent, [Mrs T].

Brief background history

4 The parties married on 6 April 1961. Some 10 years later their first child

[Tanya] was born. She is now financially independent and lives [overseas]. She is
closely aligned with her father.
5 In…

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.

Continue reading B and B & Anor

Details

AGLC: B and B & Anor [2008] FCWA 46
Case: [2008] FCWA 46
Decision Date: 1 MAY 2008

CaseChat Overview and Summary

In the Family Court of Australia, the case of B and B & Anor was heard. The couple, having been married for a significant period, faced a dispute over the division of their assets. The primary issue was the inclusion of certain assets in the pool of property to be divided, and specifically, whether contributions from one party to the acquisition of a property held by a third party should be considered. The court was required to determine the legal principles governing the division of property in long marriages and the relevance of third-party interests in the acquisition of assets.

The court examined the principles of property settlement in long marriages, considering both the contributions of the parties and the nature of the assets to be divided. It was necessary to assess whether the contributions made by one party towards the acquisition of property held by a third party should be included in the pool of assets. The court also needed to determine the appropriate weight to give to such contributions in the context of a long-term relationship. The legal issue turned on the interpretation of the relevant statutes and case law, which guide the equitable division of property in marriage.

The court found that the contributions made by one party to the acquisition of property held by a third party could indeed be considered in the division of the matrimonial property pool. The court reasoned that such contributions, where made with the expectation of a beneficial interest, should be recognised and factored into the equitable distribution of assets. The court highlighted that the nature of the contributions and the circumstances surrounding the acquisition were critical in determining their relevance. The court ordered that the contributions in question be included in the pool of assets for the purposes of the property settlement. This decision ensured that the contributions made by one party were not overlooked and that the division of property was conducted in an equitable manner, reflecting the realities of the couple's financial arrangements during their marriage.

Orders