BOSWORTH & FIRKINS - [2012] FamCA 874

FAMILY COURT OF AUSTRALIA

BOSWORTH & FIRKINS

[2012] FamCA 874

FAMILY LAW - PROPERTY – Cross-vested proceedings – proceedings brought under the Domestic Relationships Act 1994 (ACT) – dispute about when the domestic relationship ended – whether proceedings should have been brought under the de facto financial provisions of the Family Law Act 1975 (Cth) – whether the applicant needs leave to commence proceedings out of time

FAMILY LAW - PROPERTY – Asset pool – whether money spent on legal fees should be added back – whether money was spent on reasonable living expenses – where parties were in a de facto relationship – what weight should be given to the initial contribution made by the respondent – dispute about contributions – whether mortgage repayments for a property acquired after separation constitute post-separation contributions – whether the respondent has higher earning capacity – whether adjustment should be made for discrepancies in superannuation entitlements – adjustments made pursuant to s 19(2)

Domestic Relationships Act 1994 (ACT), ss 3, 13, 15, 33
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), s 2, Sch 1 Part 2 ss 86 and 86A
Family Law Act 1975 (Cth), s 90RC

Beavan v Fallshaw (1992) 15 Fam LR 686
Bullivant & Holt [2012] FamCA 134
Chorn & Hopkins (2004) FLC 93-204
Dickons & Dickons [2012] FamCAFC 154
Hayes v Harrison [2002] ACTSC 22
Jones v Dunkel (1959) 101 CLR 298
Kowaliw & Kowaliw (1981) FLC 91-092
Marker v Marker [1998] FamCA 42
Omacini & Omacini (2005) FLC 93-218
Smith v Pearson [2011] NSWSC 600
Townsend v Townsend (1995) FLC 92-569

APPLICANT:

Mr Bosworth

RESPONDENT:

Ms Firkins

FILE NUMBER:

CAC

1468

2009

DATE DELIVERED:

19 October 2012

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

31 July 2012 - 2 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms J Godtschalk

SOLICITOR FOR THE APPLICANT:

Phelps Reid Lawyers

COUNSEL FOR THE RESPONDENT:

Mr D Farrar

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini & Dunn

Orders

The respondent, Ms Firkins, pay to the applicant, Mr Bosworth, the sum of $106,240 within 60 days of the date of these Orders.
Otherwise, each party is the sole owner of any property currently in their name or possession and each party is solely liable for any liability currently in his or her name, or secured over any item of property currently in his or her possession.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

IT IS NOTED that publication of this judgment by this Court under the pseudonym

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

Case: [2012] FamCA 874
Decision Date: 19 October 2012

CaseChat Overview and Summary

This case involved a dispute between Mr Bosworth (the applicant) and Ms Firkins (the respondent) concerning the division of their property following the end of their de facto relationship. The proceedings were initially brought under the *Domestic Relationships Act 1994* (ACT), but the court considered whether they should have been brought under the *Family Law Act 1975* (Cth) and whether leave was required to commence proceedings out of time. The applicant sought an equal division of the parties' assets, while the respondent contended that each party should retain the property in their own name, based on an alleged agreement made at the commencement of the relationship.

The court was required to determine several legal issues. These included the date of the termination of the domestic relationship for the purposes of property adjustment, the validity and effect of an alleged oral agreement between the parties regarding their property, and the appropriate division of the asset pool. The court also had to consider various claims regarding contributions, including the respondent's initial contribution, mortgage repayments made after separation, discrepancies in earning capacity and superannuation entitlements, and whether money spent on legal fees or reasonable living expenses should be added back to the asset pool.

The court found that while physical separation occurred in April 2009, this did not necessarily mark the termination of the relationship for legal purposes. Regarding the alleged agreement, the court noted that even if such an agreement existed, it would not be enforceable under section 33 of the *Domestic Relationships Act* as it was not in writing, signed by the parties, and accompanied by independent legal advice certificates. The court proceeded to consider the division of the asset pool, taking into account the parties' contributions and other relevant factors, including adjustments for earning capacity and superannuation.

The court ordered that the respondent pay the applicant the sum of $106,240 within 60 days. Otherwise, each party was to retain sole ownership of property currently in their name or possession and be solely liable for any liabilities in their name or secured over property in their possession. Provisions were also made for the return of subpoenaed material.

Orders

Orders of the court

The respondent, Ms Firkins, pay to the applicant, Mr Bosworth, the sum of $106,240 within 60 days of the date of these Orders.

Otherwise, each party is the sole owner of any property currently in their name or possession and each party is solely liable for any liability currently in his or her name, or secured over any item of property currently in his or her possession.

All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I note in passing that, at least at one point, the applicant appeared to be contending for the fact that the separation occurred in April 2009. The applicant resiled from that position during these proceedings. I am reasonably satisfied that April 2009 was when the physical separation between the parties occurred rather than the termination of the relationship in accordance with the definition as I have examined it above. The contentions of the parties are fairly easily summarised. The applicant seeks that the assets of the parties be divided between them equally.[32] The respondent seeks that each of the parties should keep those assets in his or her own name.[33] The full text of their respective applications appear as annexures to these Reasons for Judgment. [32] Statement of Claim, 5; Applicant’s aide memoir filed in Court on 2 August 2012, 2. [33] Defence and Counterclaim, 6. However, few things in this matter are ever clear-cut and even those relatively straight-forward contentions had nuances. The respondent contended there had been an agreement between the parties, at or about the time their relationship commenced, that neither would make any claim on any property acquired by the other during the course of the relationship and that each would keep what he or she had if the relationship came to an end:[34][34] Respondent’s affidavit, filed on 29 October 2010, [38]-[40]. 38. Around the time we started seeing each other romantically, [the applicant] and I had a conversation in which I said words to the effect,“If we start living together, any property in my name I will keep and any property in your name you can keep, I don’t want to get married. We will keep separate finances and separate property and belongings.”39. [The applicant] said:“I agree”…“If we ever break up, I’ll be leaving with just my books, CDs, record collection, computer and couch, and any savings.” The applicant denies that such a conversation ever occurred and no such agreement existed between the parties.[35] For the purposes of these proceedings, whether or not such conversations took place is irrelevant for the reasons articulated below. [35] Applicant’s affidavit, filed on 12 November 2010, [35]. Section 33 of the Domestic Relationships Act governs the effect of agreements in proceedings for the adjustment of property interests. That section states that a court shall not make orders adjusting the property interests of parties that would be inconsistent with an agreement between the parties unless it is satisfied that:(b)the agreement is in writing; and(c)the agreement is signed by the party against whom it is sought to be enforced; and(d)before the agreement was signed each party was given a certificate by a solicitor to the effect that the solicitor had advised the party, independently of the party, about – (i)the effect of the agreement on the rights of the parties under [the Domestic Relationships Act]; and(ii)the advantages and disadvantages for the party, at the time the advice was given, of making the agreement; and(e)the certificates referred to in paragraph (d) are endorsed on or accompany the agreement.