JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: BLAKE and BAAS & Ors [2020] FCWA 229
CORAM: TYSON J
HEARD: 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26 FEBRUARY and 28 JULY 2020
DELIVERED : 24 DECEMBER 2020
FILE NO/S: PTW 3664 of 2016
BETWEEN: MS BLAKE
Applicant
AND
MR BAAS
First Respondent
AND
MS PRIESTLY
Second Respondent
AND
AB PTY LTD
Third Respondent
AND
CD PTY LTD
Fourth Respondent

Catchwords:

FAMILY LAW – PROPERTY – De facto relationship – Whether it is just and equitable to make an order altering property interests – Identification of the existing legal and equitable interests of the parties in property – Consideration whether assets are property or a financial resource – Consideration as to whether superannuation interests are property of a party to the de facto relationship – Consideration as to whether debts are owing by the de facto wife to various entities, who are parties to the proceedings – Where it is found to be just and equitable to make an order altering property interests – Where the assessment of contributions overwhelmingly favour the de facto husband – Where it is found the de facto wife has wasted funds – Where both parties to the de facto relationship have failed to make full and frank disclosure – Consideration of s 205ZD of the Family Court Act – Justice and equity – Case turns on its own facts

Legislation:

Child Support (Assessment) Act 1989 (Cth)
Corporations Act 2001 (Cth)
Evidence Act 1906 (WA)
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Family Provision Act 1972 (WA)
Interpretation Act 1984 (WA)
Limitation Act 2005 (WA)
Property Law Act 1969 (WA)
Rules of the Supreme Court 1971 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Berry SC
First Respondent	:	Mr Solomon SC, Ms Anderson and Mr Firios
Second Respondent	:	Mr Hooper SC
Third Respondent	:	N/A
Fourth Respondent	:	N/A

Solicitors:

Applicant	:	Klimek & Wijay Family Lawyers
First Respondent	:	Hammond Legal
Second Respondent	:	Carr & Co
Third Respondent	:	N/A
Fourth Respondent	:	N/A

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

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Bevan & Bevan (2013) FLC 93-545
BP v KS (2003) FLC 93-157
Brandi v Mingot (1976) 51 ALJR 207
Briese & Briese (1986) FLC 91-713
C & C [1998] FamCA 143
Calvin & McTier (2017) FLC 93-785
Carter and Carter (1981) FLC 91-061
Chancellor & McCoy (2016) FLC 93-752
Chang v Su (2002) FLC 93-117
Chapman & Chapman (2014) FLC 93-592
Chorn and Hopkins (2004) FLC 93-204
Coley v Danae [2020] WASCA 13
Commonwealth v Milledge (1953) 90 CLR 157
Cook v Langford (2008) FLC 93-374
Dahl & Hamblin (2011) FLC 93-480
Dulton & Dulton [2020] FamCAFC 209
Elias and Elias (1977) FLC 90-267
Fabre v Arenales (1992) 27 NSWLR 437
Farmer & Bramley (2000) FLC 93-060
Ferraro and Ferraro (1993) FLC 92-335

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 BLAKE and BAAS & Ors

Details

AGLC: BLAKE and BAAS & Ors [2020] FCWA 229
Case: [2020] FCWA 229
Decision Date

CaseChat Overview and Summary

- Parties, Nature of Dispute, and Court
Ms Blake and Mr Baas were in a de facto relationship for around 8½ years. Following the breakdown of the relationship, Ms Blake seeks orders by way of alteration of property interests, including an order that Mr Baas pay her $8 million. Mr Baas says it is not just or equitable to make any orders. The proceedings are governed by the Family Court Act 1997 (WA) (“the Act”) and the Family Law Act 1975 (Cth) (“the Family Law Act”). The Family Court of Western Australia has jurisdiction to make an order altering the property interests of Ms Blake and Mr Baas, if it is satisfied that in all of the circumstances, it is just and equitable to do so.

- Legal Issues
The Court had to determine a number of issues, including:•What is the duration of Mr Baas and Ms Blake’s relationship?•Have Mr Baas and Ms Blake complied with their obligations to provide full and frank disclosure?•What is the identity and value of the property of Mr Baas and Ms Blake, according to ordinary common law and equitable principles? As part of that issue, the following questions required resolution:•What assets form part of the Baas Group?•Are Mr Baas’ beneficiary loan accounts his personal property, or part of the Baas Group?•What is the effect of Family Court Orders between Mr Baas and his former wife, on Mr Baas’ interest in the Baas Group?•Is Mr Baas’ interest in the Baas Group property or a financial resource?•Should Mr Baas’ superannuation entitlements be treated as property?•What are Ms Blake’s liabilities? Is Ms Blake indebted to AB Pty Ltd and CD Pty Ltd and if so, what amount does she owe? Does Ms Blake owe money by way of personal loans? What amount does Ms Blake’s sister owe to Ms Blake?•What is the value of Ms Blake’s personal property?•In light of the parties’ existing interests, is it just and equitable to make an order by way of alteration of property interests?•Did Ms Blake receive and/or retain funds without Mr Baas’ knowledge or consent?

- Court's Reasoning and Outcome
The Court found that it was just and equitable to make an order by way of alteration of property interests. The Court identified the existing legal and equitable interests of the parties in their property and ascertained whether it was just and equitable to make an order altering those interests. The Court conducted a separate and careful deliberation as to whether it would be just and equitable to make any order, in all the circumstances. In that process, it was permissible to consider the contributions of the parties, but it was not mandatory to do so, nor it was conclusive as to whether the just and equitable test had been met. The Court identified and assessed the contributions of the parties, both financial and non-financial, holistically over the whole period to trial. The Court considered the respective contributions of the parties, both financial and non-financial, holistically over the whole period to trial. The Court assessed the relevant matters referred to in ss 205ZG(4)(d) to (g) of the Act, which include those in s 205ZD(3). The Court found that an adjustment of $750,000 in favour of Ms Blake was just and equitable in the circumstances. The Court ordered Mr Baas to pay or cause to be paid $1.75 million to Ms Blake. The Court declined to grant Ms Blake’s application to wind up the Baas Group, as the consequences of a wind up were disproportionate to what was reasonably necessary, and were not just or equitable in the circumstances. The Court also declined to make any order in relation to the Notice of Relinquishment, as it was no longer relied upon by Ms Priestly or Mr Baas. The Court ordered that Ms Blake is to retain the benefit of the funds she has received and/or retained, excluding the debt which she owes to CD Pty Ltd. The Court granted the injunction proposed to prevent Mr Baas from commencing personally, or on behalf of any entity, any further proceedings against Ms Blake, arising out of the relationship.

- Final Orders
The parties were given an opportunity to consider the findings and confer, with a view to submitting a joint Minute of Proposed Orders, to give effect to the Reasons.

Orders