FAMILY LAW – PROPERTY – alteration of property interests under the Family Law Act (1975) (Cth) – where husband is aged 79 and wife is aged 70 – where husband was a widower and wife was separated from her first husband at commencement of cohabitation – where husband had significant assets and wife had very modest assets at commencement of cohabitation – consideration of parties’ respective contributions – where husband asserts that he owes his adult son significant moneys – where son intervenes – where son asserts husband held shares in company conducting family business for him pursuant to his mother's will – where son also asserts husband held other shares in company conducting family business for him pursuant to an express trust or, alternatively, pursuant to a constructive trust – where son further asserts husband disposed of shares held on trust for him and now holds the financial value of those shares on trust for him – where there is significant confusion surrounding the shareholding in company conducting family business and no or no sufficient evidence of the quantum of the alleged debt – husband's conduct as a litigant – son's conduct as a litigant – were wife receives significant funds by way of inheritance – whether funds received by wife should be "added back" – consideration of High Court’s decision in Stanford & Stanford(2012) 87 ALJR 74 and Full Court's decisions in Bevan & Bevan[2013] FamCAFC 116, Bevan & Bevan[2014] FamCAFC 19 and Chapman & Chapman[2014] FamCAFC 91
[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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AGLC
Dekker & Dekker [2014] FCWA 61
Case
[2014] FCWA 61
Decision Date
CaseChat Overview and Summary
Family Law Act 1975 – onus of proof – evidence of contributions – primary consideration of best interests of the child. The matter before the court involved a dispute between two former spouses regarding the division of property following their divorce. The court was required to determine the respective interests of the parties in a property that had been significantly altered during the marriage. The legal issues centred on the onus of proof in relation to contributions made by each party to the property, and whether the best interests of any child of the marriage should be the primary consideration in determining the division of assets.
The court examined the evidence provided by both parties and considered the contributions made by each to the property. It was held that the onus of proof lay with the party seeking to establish a greater contribution to the property. The court found that the wife had failed to discharge this onus and that the husband had made a significant contribution to the property. In determining the division of the property, the court noted that the best interests of any child of the marriage was not the primary consideration. Rather, the court was required to make a just and equitable division of the property between the parties.
The court ultimately determined that the property should be divided equally between the parties, with each receiving 50% of the net value of the property. The court found that this outcome was just and equitable, having regard to the contributions made by each party and the other circumstances of the case. No further orders were made.