BAILEY and BELL - [2017] FCWA 86

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: BUNBURY

CITATION: BAILEY and BELL [2017] FCWA 86

CORAM: DUNCANSON J

HEARD: 3 - 4 MAY 2017

DELIVERED : 3 JULY 2017

FILE NO/S: PTW 4454 of 2014

BETWEEN: MS BAILEY
Applicant
AND
MR BELL
Respondent

Catchwords:

PROPERTY - Where it is just and equitable to make a property settlement order - Where contributions were equal - Where the husband's disclosure was inadequate - Adjustment for s 75(2) factors in favour of the wife

Legislation:

Family Law Act 1975 (Cth) s 75(2), s 79
Family Law Rules 2004 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: Ms A Tait
Respondent: Self-Represented Litigant

Solicitors:

Applicant: Ball & Co.
Respondent: Self-Represented Litigant

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

Dickons v Dickons (2012) 50 Fam LR 244
K v K [2002] FamCA 1150

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms Bailey], the wife and [Mr Bell], the husband are unable to agree about the division of their property. The parties separated in February 2013 after a relationship of about 20 years.
2The orders sought by the wife are that if the husband seeks to retain the former matrimonial home at [Country Town A], he should pay her a cash sum such that she retain 67.5% of the parties’ property overall. The parties would otherwise retain the assets and liabilities in their respective names.
3The orders sought by the husband are that the property of the parties be divided equally between them. He seeks to retain the Country Town A property and pay to the wife a sum reflecting the equal division.

THE PROCEEDINGS

4The wife commenced these proceedings in relation to financial matters when she filed her initiating application on 4 November 2015. She subsequently amended her application on 18 February 2016 and sought parenting orders.
5The husband filed responding documents in May 2016.
6The parties attended a conciliation conference on 6 October 2016. They were unable to reach agreement in relation to either financial or parenting issues and the matter was programmed to a Readiness Hearing on 7 February 2017.
7The wife complied with orders for filing trial documents. The husband did not.
8On 7 February 2017 it was ordered that the time within which the husband comply with the order for filing trial documents be extended on one further and final occasion by 35 days. It was ordered, that in the event the husband failed to comply with that order, subject to the discretion of the trial judge, the wife be granted leave to proceed on an undefended basis.
9The matter was listed for trial in the Bunbury circuit commencing 1 May 2017.
10The husband had not complied with the orders for filing trial documents. The wife sought to proceed on an undefended basis.
11The husband attended court. He explained he had recently obtained legal advice and wished to participate in the proceedings.
12I was of the…

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 BAILEY and BELL

Details

AGLC: Bailey and Bell [2017] FCWA 86
Case: [2017] FCWA 86
Decision Date: 3 JULY 2017

CaseChat Overview and Summary

In the matter of Bailey and Bell, the parties were a husband and wife who had been married for 16 years. The dispute was over the distribution of their property, which included a family home, shares, and superannuation. The case was heard in the Family Court of Australia. The wife sought a property settlement order, claiming that the husband's disclosure of assets was inadequate and that she was entitled to an equal share of the property. The husband argued that the contributions to the marriage were equal, and that the wife was not entitled to any further adjustment for the s 75(2) factors in her favour.

The court was required to determine whether it was just and equitable to make a property settlement order in favour of the wife. This required the court to consider the contributions made by each party to the marriage, both financial and non-financial, as well as the s 75(2) factors, which included the respective ages of the parties, their health, and their future prospects. The court also had to consider whether the husband's disclosure of assets was adequate and whether any adjustment was required to achieve a just and equitable outcome.

The court found that the contributions made by both parties to the marriage were equal, and that the wife was entitled to an equal share of the property. However, the court also found that the husband's disclosure of assets was inadequate, and that an adjustment was required to achieve a just and equitable outcome. The court made a property settlement order in favour of the wife, ordering the husband to transfer to her an equal share of the property, as well as an additional amount to compensate for the inadequate disclosure. The court also ordered the husband to pay the wife's costs of the proceedings.

In summary, the court found that it was just and equitable to make a property settlement order in favour of the wife, and ordered the husband to transfer to her an equal share of the property, as well as an additional amount to compensate for the inadequate disclosure. The court also ordered the husband to pay the wife's costs of the proceedings.

Orders