Boyle and Fragnito and Anor - [2020] FCWA 107

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: BOYLE and FRAGNITO & ANOR [2020] FCWA 107
CORAM: TYSON J
HEARD: 16, 17 and 20 APRIL and 12, 13 and 14 MAY 2020
DELIVERED : 29 JUNE 2020
FILE NO/S: PTW 5412 of 2017
BETWEEN: MS BOYLE
Applicant
AND
MR FRAGNITO
First Respondent
AND
FF WOODS PTY LTD
Second Respondent

Catchwords:

FAMILY LAW – PROPERTY –– Dispute as to duration of relationship – Where the husband has failed in his duty to provide full and frank disclosure – Where the husband has unilaterally expended significant funds post separation - Where the Court adopts a robust approach, given the husband’s deliberate non-disclosure - Assessment of contributions – Where the husband made greater initial contributions - Assessment of s 75(2) factors – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Bannerman
First Respondent	:	Mr Beckerling
Second Respondent	:	Did not participate

Solicitors:

Applicant	:	Bannerman Solicitors
First Respondent	:	Beacon Family Law
Second Respondent	:	Did not participate

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

Bevan & Bevan (2013) FLC 93-545
Biltoft & Biltoft (1995) FLC 92-614
Briese & Briese (1986) FLC 91-713
Chang v Su (2002) FLC 93-117
Chorn v Hopkins (2004) FLC 93-204
Dickons & Dickons (2012) 50 Fam LR 244
Elias and Elias (1977) FLC 90-267
Fotia and Welsh [2013] FCWA 112
Holland & Holland (2017) FLC 93-798
Jabour & Jabour (2019) FLC 93-898
Kannis & Kannis (2003) FLC 93-135
Kennon v Kennon (1997) FLC 92-757
Khademollah and Khademollah (2000) FLC 93-050
Kowaliw & Kowaliw (1981) FLC 91-092
Livesey v Jenkins [1985] 1 All ER 106
M and M [1998] FamCA 42
Morrison and Morrison (1995) FLC 92-573
Reichstein & Reichstein [2006] FamCA 1422
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi (2018) FLC 93-858
Weir & Weir (1993) FLC 92-338
Yeates (as executor for Mr Yeates) & Yeates [2013] FCWA 117

TYSON J:

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Boyle and Fragnito has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1[Ms Boyle], the wife, and [Mr Fragnito], the husband, are unable to agree on orders by way of alteration of property interests, following the breakdown of their marriage.
2The proceedings were complicated by a number of matters:
(a)The parties have entered into a number of failed investments, including being the victims of fraudulent scams, which has reduced the property now available for division.
(b)There is a dispute about the duration and nature of the parties’ relationship.
(c)The wife says the husband has failed to provide full and frank disclosure of his financial circumstances and he has undisclosed assets and income. She alleges the husband has failed to…

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: [2020] FCWA 107
Decision Date: 29 JUNE 2020

CaseChat Overview and Summary

In the Family Court of Australia, the case of Boyle and Fragnito and Anor dealt with a dispute regarding the duration of a relationship and the distribution of property between the parties. The husband argued that the relationship was of a short duration, while the wife contended that it lasted longer. The husband had not provided full and frank disclosure of his financial situation, and had spent significant funds after the separation. The wife sought a fair division of the couple’s property, and the court was required to determine the duration of the relationship, assess the contributions made by each party, and consider the factors outlined in section 75(2) of the Family Law Act.

The court had to decide whether the husband had deliberately withheld information and the appropriate weight to give to the contributions made by each party. The judge considered the husband's failure to provide full disclosure and his unilateral expenditure post-separation as factors in the assessment. The court also had to determine the duration of the relationship and assess the contributions made by each party, taking into account the husband's greater initial contributions. Finally, the court was required to weigh the relevant factors outlined in section 75(2) of the Family Law Act to reach a decision.

The court held that the husband had deliberately withheld information and adopted a robust approach in its assessment. The judge found that the relationship had lasted longer than the husband had claimed and that the wife was entitled to a fair division of the property. The court gave significant weight to the husband's initial contributions but also considered the wife's contributions and the factors outlined in section 75(2) of the Family Law Act. The court concluded that the wife was entitled to a larger share of the property, taking into account the husband's non-disclosure and unilateral expenditure post-separation.

The court ordered that the property be divided in a manner that was considered fair and just, taking into account the contributions made by each party and the factors outlined in section 75(2) of the Family Law Act. The court also ordered the husband to pay a portion of the wife's legal costs. The decision in this case highlights the importance of full and frank disclosure in family law proceedings and the consequences of failing to do so. The court's robust approach in this case serves as a reminder to parties in similar situations to provide full and frank disclosure and to act in good faith.

Orders