Dakin and Dakin - [2011] FMCAfam 177

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAKIN & DAKIN

[2011] FMCAfam 177

FAMILY LAW – 32 year marriage – wife and three adult children allege serious violence against them by the husband throughout the marriage – discussion of principle in Kennon – causal link in relation to impact of violence upon wife’s contributions not established – husband contributes compensation funds.

Family Law Act 1975 (Cth), ss.75, 79

Aleksovski & Aleksovski (1996) FLC 92-705; 20 FamLR 894
C & C (2000) FLC 93-220
Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143
In the Marriage of Bourke (1981) FLC 91-055
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Lee Steere (1985) FLC 91-626
JEL & DDF (2001) FLC 93,075
Keenahan [2004] FamCA 360
Kennon v Kennon (1997) FLC 92-757
Kowalski and Kowalski (1993) FLC 92-342
Norbis and Norbis (1986) 161 CLR 513
Norman & Norman [2010] FamCAFC 66
Sippel & Sippel [2004] FamCA 201
Spence & Spence [2008] FamCA 263

Applicant:

MR DAKIN

Respondent:

MS DAKIN

File Number:

SYC 972 of 2009

Judgment of:

Sexton FM

Hearing dates:

27, 28 January & 4 February 2011

Date of Last Submission:

4 February 2011

Delivered at:

Sydney

Delivered on:

8 March 2011

REPRESENTATION

Counsel for the Applicant:

Mr W. Ward

Counsel for the Respondent:

Mr R. Battley

Solicitors for the Respondent:

Marc Antony Lawyers

THE COURT ORDERS BY CONSENT THAT:

The Husband forthwith do all things and sign all documents necessary to effect a transfer of the land held by him in Croatia to the Wife.

THE COURT FURTHER ORDERS THAT:

Within 60 days of the date of these Orders, the following occur simultaneously:
(a)The wife pay the husband by way of property settlement the sum of $78,065.36;
(b)The wife do all things and execute all documents necessary to cause the mortgage secured over the property at Property C, being all the land in Folio Identifier [omitted] in the State of New South Wales (“the home”) to be discharged and indemnify the husband in relation to same; and
(c)The husband do all acts and things and execute all documents necessary to cause his right, title and interest in the [C] home to be transferred to the wife.
Pending transfer of the home, the Wife be responsible for all outgoings on the Property C, [C] property and indemnify and keep indemnified the Husband in relation to those outgoings.
In the event the Wife fails to comply with Order (2)(a) and (b) by the due date in accordance with these Orders, the parties forthwith do all things necessary to effect a sale of the property, by either private treaty or public auction, as the Wife elects, for the best price reasonably obtainable.
The Wife select the real estate agent and the conveyancing solicitor in relation to the sale and take responsibility for the conduct of the sale.
Upon the completion of the sale the proceeds to be distributed in…

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 Dakin and Dakin

Details

AGLC: Dakin and Dakin [2011] FMCAfam 177
Case: [2011] FMCAfam 177
Decision Date: 8 March 2011

CaseChat Overview and Summary

In the case of Dakin and Dakin, the parties, who were married for 32 years, sought a determination of their property entitlements following their separation. The key issue was how to assess the parties' contributions, given the Wife's full-time employment history, the Husband's substantial periods out of the workforce, the Wife's domestic and child-rearing contributions, and the Wife's allegations of the Husband's abusive conduct towards her and the children during the marriage. The Court had to determine the assets, liabilities, and financial resources of the parties, their values, and their financial and non-financial contributions during the marriage and after separation. The Court also needed to consider the effect of any proposed order on the earning capacity of each party and any factors relevant under s.75(2) of the Family Law Act 1975.

The Court found that the Wife had consistently worked throughout the marriage, often in three jobs at a time, while the Husband had minimal periods of employment and made limited financial contributions. The Court found the Husband's evidence to be contradictory and lacking in credibility, and made an adverse finding on his credit as a result of his denial of abusive conduct. The Court accepted the Wife's and the parties' children's evidence of the Husband's abusive conduct during the marriage, and while this conduct could be considered in property proceedings, the causal link between the domestic violence and the Wife's contributions was not established. Therefore, no adjustment was made in favour of the Wife as a result of the Husband's violence.

Based on the evaluation of each party's contributions, the Court assessed the Wife's contribution entitlement at 77% of the net asset pool. The Court found that the result was just and equitable, and made orders for the division of the parties' assets, including the transfer of the land held by the Husband in Croatia to the Wife, a property settlement payment from the Wife to the Husband, and the discharge of the mortgage secured over the property at [C].

In summary, the Court found that the Wife was entitled to 77% of the net asset pool by way of contributions, and ordered the division of the parties' assets accordingly. The Court also found no basis for an adjustment to either party under s.75(2) of the Family Law Act 1975.

Orders