B v A - [2014] WASCA 173

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: B -v- A [2014] WASCA 173

CORAM: BUSS JA
NEWNES JA
MURPHY JA

HEARD: 19 AUGUST 2014

DELIVERED : 12 SEPTEMBER 2014

FILE NO/S: CACV 97 of 2013

BETWEEN: B
Appellant
AND
A
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :MORONI M
Citation  :B and A [2013] FCWAM 86
File No  :PTW 5066 of 2003

Catchwords:

Family law - Appeal concerning dismissal of application to set aside de facto property settlement - Whether error in finding de facto relationship broke down prior to commencement of pt 5A of Family Court Act 1997 (WA) - Whether orders were beyond power - Section 205ZG and s 205ZI of Family Court Act - Application to adduce additional evidence - Orders made eight years prior to application to set aside - Whether other discretionary reasons relevant to dismissal of appeal - Delay - Failure to lodge an appeal against orders eight years earlier

Legislation:

Family Court Act 1997 (WA), s 205ZG, s 205ZH, s 205ZI
Supreme Court (Court of Appeal) Rules 2005 (WA), r 47(3)(d)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

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

B and A [2013] FCWAM 86
Lunt v New Resource Holdings Pty Ltd [No 3] [2011] WASCA 45
Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13

REASONS OF THE COURT:

Introduction

This is an appeal against a decision of Magistrate Moroni, made on 23 August 2013, dismissing certain proceedings commenced by the appellant against his former de facto partner, the respondent. Magistrate Moroni's reasons are recorded in B and A [2013] FCWAM 86. (All references to paragraph numbers in the reasons below are references to paragraph numbers in Magistrate Moroni's reasons unless otherwise indicated.)
The proceedings before Magistrate Moroni involved an application by the appellant, filed 15 June 2012, for orders setting aside previous orders made in relation to a property settlement between the parties some eight years earlier in relation to a property in East Perth that had been jointly owned by the parties. In his application to Magistrate Moroni, the appellant sought orders in the following terms:
SET ASIDE ORDER FOR SALE OF UNIT [address omitted] TO THIRD PARTIES.
[The applicant] SEEKS TO COMMENCE NEW PROCEEDINGS IN THE SUPREME COURT OF WESTERN AUSTRALIA TO RAISE THE MATTER WITH THE ATTORNEY GENERAL FOR WESTERN AUSTRALIA - AS A CLAIM [4].
In his application to Magistrate Moroni, the appellant relied on s 205ZH in pt 5A of the Family Court Act 1997 (WA) (the Act). Section 205ZH(1) of the Act provides, relevantly:
205ZH. Setting aside of orders altering property interests - FLA s. 79A
(1)Where, on application by a person affected by an order made by a court under section 205ZG in proceedings with respect to the property of de facto…

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 v A

Details

AGLC: B v A [2014] WASCA 173
Case: [2014] WASCA 173
Decision Date: 12 SEPTEMBER 2014

CaseChat Overview and Summary

B sought to appeal the dismissal of an application to set aside a de facto property settlement. The Family Court dismissed the application, finding that the de facto relationship had broken down before the commencement of Part 5A of the Family Court Act 1997 (WA). The appeal raised the question of whether the lower court had erred in making this finding. Additionally, the appeal challenged the scope of the court's discretion under s 205ZG of the Act in altering property interests and whether the orders were beyond the court's power.

The court considered whether the de facto relationship had indeed broken down prior to the commencement of Part 5A of the Family Court Act 1997 (WA). The court also examined whether the orders made were within the court's discretion under s 205ZG of the Act. The court reviewed the appeal's application to adduce additional evidence and the orders made eight years prior to the application to set aside. The court also examined whether there were other discretionary reasons relevant to the dismissal of the appeal, such as delay and the failure to lodge an appeal against the orders eight years earlier.

The appeal was dismissed. The court held that the finding that the de facto relationship had broken down prior to the commencement of Part 5A of the Family Court Act 1997 (WA) was not erroneous. The court held that the orders made were within the court's discretion under s 205ZG of the Act. The court held that the delay in bringing the appeal and the failure to lodge an appeal against the orders eight years earlier were discretionary reasons relevant to the dismissal of the appeal.

No orders were made.

Orders

Orders of the court

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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

Section 205ZG, also in pt 5A of the Act, provides, amongst other things:205ZG. Alteration of property interests — FLA s. 79(1)In proceedings with respect to the property of de facto partners, or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the partners to make, for the benefit of either or both of the partners or a child of the de facto relationship, such settlement or transfer of property as the court determines.…(3)The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.(4)In considering what order (if any) should be made under this section in proceedings with respect to any property of de facto partners, or either of them, the court must take into account -(a)the financial contribution made directly or indirectly by or on behalf of a de facto partner to the de facto relationship or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners, or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the de facto partners or either of them; (b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a de facto partner or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the de facto partners or either of them; (c)the contribution made by a de facto partner to the welfare of the family constituted by the de facto partners and any children of the de facto partners, including any contribution made in the capacity of homemaker or parent; (d)the effect of any proposed order upon the earning capacity of either de facto partner; (e)the matters referred to in section 205ZD(3) so far as they are relevant; (f)any other order made under this Act affecting a de facto partner or a child of the de facto relationship; and(g)any child support under the Child Support (Assessment) Act that a de facto partner has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.…(9)A court must not make an order under this section in proceedings with respect to the property of de facto partners, or either of them (other than an order until further order or an order made with the consent of all the parties to the proceedings) unless -(a)the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with the Principal Registrar, a registrar or a deputy registrar; (b)the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or(c)the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).