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Bacall & Zagar

Bacall & Zagar

Case [2020] FamCA 350 14 May 2020

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FAMILY COURT OF AUSTRALIA

BACALL & ZAGAR

[2020] FamCA 350

FAMILY LAW – ALTERATION OF PROPERTY INTERESTS – no parenting issues.

COHABITATION – disputed evidence of duration of relationship, the husband contending the relationship lasted a few years only whereas the wife contending the relationship lasted for over 15 years – finding in wife’s favour.

DISCLOSURE BY HUSBAND – very poor – serious difficulty obtaining a reliable understanding of the totality of the parties’ asset position – wife, conversely, in straitened financial circumstances – financial position of husband substantial – extensive review of authority of appropriate orders where discovery has been defective.

CONTRIBUTIONS – husband providing the lion’s share of financial contributions – the wife providing significant home-maker contributions – husband contending wife’s entitlement limited to 5% - wife initially seeking a 50% division of property but at the trial contending for 40% - wife’s contentions upheld as to 40% – division ordered in the percentages 40% to the wife and 60% to the husband.

Family Law Act 1975 (Cth), ss 49, 75(2), 79, 112AP, pt VIII
Family Law Rules 2004 (Cth), rr 1.07, 1.08, 13.04(1)(a)-(h), 13.07, 13.15(2)
Partnership Act 1892 (NSW), s 2
Partnership Act 1958 (Vic), s 5(1)

Matrimonial Causes Act 1959 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Civil Procedure Act 2010 (Vic)

Abalos v Australian Postal Commission (1990) 171 CLR 167
Abercrombie v Abercrombie [1943] 2 All ER 465
Adamson & Adamson (2014) 51 Fam LR 626
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Ambler & Ambler [2019] FamCA 870
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 332
Ashby v Slipper (2014) 219 FCR 322
Ashton v Pratt (2015) 88 NSWLR 281
Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297
Barker v Barker (2007) 36 Fam LR 650
Baumgartner v Baumgartner (1987) 164 CLR 137
Bevan & Bevan (2013) 49 Fam LR 387
Blomley v Ryan (1956) 99 CLR 362
Bradshaw v Bradshaw [1897] P 24
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Breskvar v Wall (1971) 126 CLR 376
Brewer & Brewer [2019] FamCA 247
Browne v Dunn [1893] 6 ER 67
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Burns v Burns [2004] EWCA Civ 1258
Calverley v Green (1984) 155 CLR 242
Carlson & Fluvium [2012] FamCA 32
Chang v Su (2002) 29 Fam LR 406
Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317
Coghlan v Cumberland [1898] 1 Ch 704
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing &Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466
Conrock Ltd v CSR Ltd [1990] FCA 312
CSR Ltd v Della Maddalena (2006) 80 ALJR 458
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Dawson v. Westpac Banking Corporation (1991) 66 ALJR 94, 99
Dearman v Dearman (1908) 7 CLR 549
Devriesv Australian National Railways Commission (1993) 177 CLR 472

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: Bacall & Zagar [2020] FamCA 350
Case: [2020] FamCA 350
Decision Date: 14 May 2020

CaseChat Overview and Summary

In *Bacall & Zagar*, the Family Court of Australia considered an application by the wife for the alteration of property interests following the breakdown of the parties' marriage. The central dispute revolved around the duration of the relationship and the appropriate division of the parties' assets, with no parenting issues arising for determination.

The court was required to determine the true duration of the cohabitation period, as the husband contended the relationship lasted only a few years while the wife asserted it endured for over 15 years. Furthermore, the court had to address the significant disparity in financial disclosure, with the husband's disclosure being described as "very poor" and making it difficult to ascertain the full extent of the parties' assets, contrasted with the wife's straitened financial circumstances. The court also had to consider the respective contributions of each party to the marriage, particularly in light of the husband's substantial financial contributions and the wife's significant contributions as a homemaker.

Justice Wilson found in favour of the wife regarding the duration of the relationship, accepting her evidence that they had cohabited for over 15 years. The court noted the husband's defective disclosure and the difficulties this created in assessing the asset pool. Applying established principles regarding property division in de facto and married relationships, the court considered the financial and non-financial contributions of each party. Despite the husband's assertion that the wife's entitlement should be limited to 5%, and her initial claim for 50% of the property, the court ultimately ordered a division of 40% to the wife and 60% to the husband, reflecting her significant homemaker contributions and the overall circumstances of the case.

Orders