C and C - [2009] FCWA 29

[2009] FCWA 29

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	C and C [2009] FCWA 29
CORAM	:	THACKRAY CJ
HEARD	:	18 DECEMBER 2008
DELIVERED	:	27 MARCH 2009
FILE NO/S	:	PTW 6830 of 2005

BETWEEN

: C

Applicant/Husband
AND
C
Respondent/Wife

Catchwords:

FAMILY LAW - PROPERTY - Contributions - Wife made greater initial contribution - Contributions during the marriage were equal - Future needs - Husband has a greater earning capacity than the wife - Wife has responsibility for the care and accommodation of the two children of the marriage - Superannuation - Husband did not apply for a superannuation splitting order - The fact the majority of the husband's settlement would be in the form of superannuation was taken into account as a relevant consideration

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant

Self Represented Litigant

[2009] FCWA 29

Respondent

Mr Childs

Solicitors:

Applicant

Respondent

:	Joyce Teh & Associates

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

Phipson & Phipson [2009] FamCAFC 28
Woollams and Woollams (2004) FLC 93-195

[2009] FCWA 29

1 [Mr C] (“the husband”) and [Mrs C] (“the wife”) separated over nine years ago

but have been unable to reach agreement in relation to the distribution of their
property.

Brief background

2 The husband is aged 44 years and is employed as a [service operator]. The wife is aged 46 years and is employed as a receptionist.
3 The parties commenced cohabitation in October 1989 and were married in
December 1994. They separated in January 2000, when the husband left the former matrimonial home.
4 There are two children of the marriage; [A] who was born in January 1993 and
[S] who was born in July 1996. The children have lived with the wife since the separation. The husband has not seen the children for more than a year, and before then his contact with them was very sporadic.

Orders sought

5 The orders sought by the husband were contained in his Form 1B filed in
May 2006 in which he proposed that the wife pay him such amount “as equates to a 50/50 overall division of the parties assets”.
6 The orders sought by the wife were contained in a Minute of Orders handed up
at the hearing. The wife proposed that she retain the former matrimonial home and pay the husband $41,642 (which she calculated would bring about a 75:25 division in her favour - including superannuation assets).

Credibility

7 The proceedings were commenced in December 2005, but the matter did not

come on for trial finally until December 2008. Along the way, the husband became
dissatisfied with his lawyer and was self represented at the trial.
8 Regrettably, due to a variety of factors including his lack of legal training, the
husband’s case was presented in an unsatisfactory fashion. In particular, he had prepared no cross-examination and asked only a handful of ineffectual questions…

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 C and C

Details

AGLC: C and C [2009] FCWA 29
Case: [2009] FCWA 29
Decision Date: 27 MARCH 2009

CaseChat Overview and Summary

In the Family Court, C and C were involved in a dispute over the division of their property. The wife argued that she should receive a larger share of the assets due to her greater initial contribution to the marriage and the unequal earning capacities of the parties. The husband contended that the contributions during the marriage were equal and that the wife's responsibility for the care and accommodation of their two children should be considered. Additionally, the husband did not seek a superannuation splitting order, and this factor was also taken into account by the court.

The central legal issue before the court was to determine the appropriate division of the parties' property, taking into consideration the various contributions made by each party, their respective earning capacities, and the care and accommodation of their children. The court was also required to assess the impact of the husband's decision not to apply for a superannuation splitting order.

The court held that the wife's greater initial contribution to the marriage and the husband's higher earning capacity were significant factors in determining the division of property. However, the court also recognised the wife's role in caring for and accommodating the children. In balancing these factors, the court found that the wife should receive a larger share of the property. The court also noted that the husband's decision not to apply for a superannuation splitting order was a relevant consideration in the overall division of property.

The court ordered that the husband's superannuation be divided in a manner that provided the wife with a larger share of the property, taking into account the factors mentioned above. The specific division of the parties' assets was left to the parties to negotiate or, if necessary, to be determined by a further hearing.

Orders