B & B - [2005] FamCA 624

[2005] FamCA 624
FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT CANBERRA CA 909 OF 2003
B
AND:
B
RESERVED JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE FAULKS
DATE OF HEARING: 7 & 8 October 2004

DATE OF JUDGMENT: 15 July 2005
APPEARANCES:
Mr J Millar for the husband
Ms A Tonkin for the wife
MATTER:B v B
CA 909 OF 2003

CORAM:Faulks DCJ
DATE OF HEARING: 7-8 October 2004

DATE OF JUDGMENT: 15 July 2005

CATCHWORDS:
FAMILY LAW - PROPERTY - s 79 Family Law Act - Pool contains: superannuation paid as pension and legal fees - Contributions - s 75(2) Family Law Act - disparities in income

CASES CITED:
Coghlan v Coghlan (2005) FLC ¶93-220; Townsend v Townsend (1995) FLC ¶92-569; Chorn v Hopkins (2004) FLC ¶93-204; Hickey v Hickey (2003) FLC 93-143; Pierce v Pierce (1999) FLC ¶92-844

REASONS FOR JUDGMENT
CA 909 OF 2003
B v. B
IN CANBERRA
7 & 8 OCTOBER 2004
Foreword

This is a case about the division of property between the husband and the wife who were married in early 1987. Throughout this judgment from time to time reference to be made to the parties as the husband and the wife, this is for convenience only and I do not wish to cause any offence to either party by doing so. The orders sought by each of the parties at the hearing are set out in endnotes 1Endnote 1 and 2Endnote 2.
I wish also to record at this point my apology for the delay in delivery of judgment. I accept that the delay has undoubtedly caused the parties a level of emotional anguish and possibly some financial difficulty. I offer my sincere apologies.
Notwithstanding that it is by no means a justification for the delay, the Full Court’s decision in Coghlan v. Coghlan[1] certainly bears upon the determinations I am obliged to make and clarifies a number of the arguments raised by counsel in their final addresses at the completion of the hearing. I offered counsel, through their instructing solicitors, the opportunity to make further submissions to me about the matter in the light of the determination in Coghlan v. Coghlan. They chose not to do so.
[1] (2005) FLC ¶93-220

The way in which I approach my determination.

In this matter there were disputes about some items in the pool of assets. These were the wife’s superannuation entitlements, the husband’s superannuation entitlements and household contents. There are disputes also about some of the liabilities of the parties or of the husband. These included the loan that the husband asserted he had received from a family member and his liability for legal costs. One of the items that might properly be included in the list of assets, namely an order for costs, the husband had been successful in obtaining is properly an off-set against the liability for costs.
The wife also disputed that a P MasterCard debt and a P loan ought to be included as…

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 & B

Details

AGLC: B & B [2005] FamCA 624
Case: [2005] FamCA 624
Decision Date: 15 July 2005

CaseChat Overview and Summary

This matter concerned an application for property adjustment between a husband and wife. The parties commenced their relationship in 1985, married in 1987, and separated in late 2002. The wife, aged 47 at the time of judgment, was diagnosed with Repetitive Strain Injury early in the relationship and was pensioned out of the Public Service in 1987, receiving a lump sum and a continuing pension. The husband, aged 43 at the time of judgment, experienced depression and took sick leave between late 2002 and early 2003, later returning to work on a graduated plan. The separation was acrimonious, involving allegations of assault by the wife against the husband, a domestic violence order, and subsequent dismissal of criminal charges against the husband.

The court was required to determine the appropriate division of the parties' property. This involved considering the contributions of each party, including financial and non-financial contributions, and whether any adjustments were warranted under section 75(2) of the Family Law Act 1975 (Cth). Ultimately, the court had to assess whether the resulting property division was just and equitable in all the circumstances.

The court's reasoning focused on assessing the contributions of each party to the acquisition, conservation, and improvement of the matrimonial property. It considered the wife's early financial contribution to the purchase of the R property and her ongoing pension. The court also took into account the husband's financial contributions and the impact of his periods of illness and psychiatric treatment on his earning capacity and contributions to the relationship. The court's ultimate determination of a just and equitable outcome would have regard to these contributions, as well as the future needs and circumstances of both parties, including the wife's ongoing health issues and the husband's recovery and return to full-time employment.

Orders

Orders of the court

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Background

Background to the litigation

Having determined those issues between the parties, I will then consider whether the provisions of section 75(2) require any adjustment to a division of property calculated by reference to the contributions of the parties. Finally I will consider whether, in the light of all of those considerations, the result is one which might properly be regarded as just and equitable.Brief background and summary of some matters not in dispute At the time of judgment the wife is about 47 years old and the husband just short of 43 years old. The parties began their relationship in 1985, marrying in 1987. At about the time that they commenced their relationship the wife was diagnosed with Repetitive Strain Injury and redeployed on light duties. The parties had bought a house which is part of the property in the pool for division at R in the Australian Capital Territory in 1986 and began to live together in 1986 or at little earlier if the wife’s version is correct. The wife paid the cash component of the purchase price from her savings. The husband paid the stamp duty. Early in the following year the wife was pensioned out of the Public Service. She received a lump sum payment from her employer of about $5,000 ($2,000 on her evidence) for long service and recreation leave entitlements. She also received a pension which she still receives to this day. Their son was born in 1989 and he is now 16 years old. During the course of their cohabitation the wife had problems with her ears and had a number of operations in 2000 and 2001. These operations required the expenditure of money and some of this (at least on the assertion of the husband) came from money he received when he left his previous employment in the year 2000. It appears that he received in total about $45,000.00 (before tax) in two components during that year. The husband commenced employment with CW, having left his previous employment in November 2000. From about late 2002 until early 2003 the husband suffered from depression and had six months sick leave. He returned to work in 2003 on a graduated work plan for a six week period which increased his work to full-time at the end of that period. The parties separated in late 2002. At that time the wife caused the husband to be charged with offences relating to an alleged assault upon her by him. These involved allegations that he had had sexual intercourse with her without her consent and common assault. The husband, in later 2002, was admitted to a private psychiatric unit for almost a month. The wife subsequently obtained an interim domestic violence order against the husband in that same month in 2002 which became a final order the following month in 2002 (without admissions). In early 2003, the charge against the husband of sexual intercourse without consent was dismissed. During 2003 the husband had approximately three and a half months paid long service leave but returned to work full-time in 2004. During 2003 the husband admitted himself to the private psychiatric unit for two weeks and also attended there subsequently on a weekly basis.

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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