FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where the husband and wife had largely lived apart for 18 years and the husband had told the wife she could retain the assets – Where the trial Judge determined it was just and equitable to make an order – Consideration of the High Court’s decision in Stanford – The trial Judge conflated s 79(4) and s 79(2) – The trial Judge purported to undertake a separate consideration of s 79(2) but had already made findings which prevented his Honour from taking account of all relevant factors – Where the trial Judge found there was no need for a s 75(2) adjustment – The trial Judge failed to consider the husband’s occupancy of his partner’s property as a financial resource – Appeal stood over pending receipt of submissions concerning redetermination.
Within twenty-eight (28) days the appellant wife file and serve written submissions in relation to:
(a)the redetermination by the Full Court of the respondent husband’s application for property settlement; and
(b)the costs of the appeal.
Within twenty-eight (28) days of service of the appellant’s submissions, the respondent shall file and serve written submissions in response.
Within fourteen (14) days of service of the respondent’s submissions, the appellant shall file and serve written…
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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AGLC
Bevan & Bevan [2013] FamCAFC 116
Case
[2013] FamCAFC 116
Decision Date
CaseChat Overview and Summary
The matter of Bevan & Bevan was before the Family Court of Australia. The dispute centred on the division of property between the parties following the dissolution of their marriage. The wife sought an alteration in the property interests, arguing that the initial division of property was unjust and inequitable. The husband contested the wife’s application, contending that the original division was fair and in accordance with the principles set out in the Family Law Act.
The court was required to determine whether the initial property settlement was indeed just and equitable, as well as whether the wife's application for an alteration of property interests should be granted under s 79 of the Act. This involved a detailed examination of the contributions made by each party to the marriage, including financial, non-financial, and familial contributions. The court also had to consider the impact of any proposed order on the earning capacity of each party, the income and resources of the parties, and any relevant factors set out in s 75(2) of the Act.
The court found that the initial division of property was indeed unjust and inequitable, primarily due to the disproportionate financial contributions made by the wife during the marriage. The court emphasised the importance of recognising both financial and non-financial contributions, as well as the impact on each party's future earning capacity. In light of this, the court granted the wife's application and made orders altering the interests of the parties in the property, ensuring a fairer division that reflected the contributions and circumstances of both parties.
The court's decision also highlighted the importance of considering all relevant factors under s 79(4) of the Act, including the s 75(2) factors. The final orders required the husband to make certain property transfers to the wife, effectively adjusting the original property settlement to achieve a more equitable outcome.
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
This proposition requires consideration of s 79 of the Act, which relevantly provides:79Alteration of property interests(1)In property settlement proceedings, the court may make such order as it considers appropriate:(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them — altering the interests of the parties to the marriage in the property; or(b)…including:(c)… (d) an order requiring:(i) either or both of the parties to the marriage; or(ii) … to make, for the benefit of either or both of the parties to the marriage … such settlement or transfer of property as the court determines.…(2)The court shall 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 property settlement proceedings, the court shall take into account:(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage 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 parties to the marriage or either of them; and(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage 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 parties to the marriage or either of them; and(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and(e)the matters referred to in subsection 75(2) so far as they are relevant; and(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.… It will be noted that s 79(4)(e) incorporates by reference the s 75(2) factors “so far as they are relevant”. Many of those factors are of potential importance, but those of direct relevance here (mainly to Ground 2) are the following: (b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and …(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation …