Dekker & Dekker

Case [2014] FCWA 61


JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: DEKKER and DEKKER [2014] FCWA 61

CORAM: WALTERS J

HEARD: 1-10 MAY 2013

DELIVERED : 15 SEPTEMBER 2014

FILE NO/S: PTW 1698 of 2007

BETWEEN: MS DEKKER

Applicant

AND

MR DEKKER
Respondent

PIM DEKKER
Intervener

Catchwords:

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

Legislation:

Family Law Act 1975 (Cth), s 75(2), s 79(2), s 79(4)
Property Law Act 1969 (WA), s 34(1)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr F Castiglione QC

Respondent: Mr M Nicholls QC

Intervener: Mr H Moser

Solicitors:

Applicant: Elizabeth Wiese & Associates

Respondent: Lewis Blyth & Hooper

Intervener: Oldfield Legal

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

Adamson v Hayes (1973) 130 CLR 276

B & B [2006] FamCA 883

Baker and Darzi [2013] FCWA 16

Baloglow v Konstantinidis & Ors [2001] NSWCA 451

Bevan & Bevan [2013] FamCAFC 116

Bevan & Bevan [2014] FamCAFC 19

Bolger & Headon [2014] FamCAFC 27

Bonacci & Bonacci [2012] FamCAFC 15

Bremner& Bremner (1995) FLC 92-560

C & C (1998) 23 Fam LR 291

C & C (2005) FLC 93-220

Cerini & Cerini [1998] FamCA 143

Chapman & Chapman [2014] FamCAFC 91

Chemaisse & The Commission of Taxation & Ors (1990) FLC 92-133

Clauson & Clauson (1995) FLC 92-596

Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614

Crandall & Crandall [2009] FamCAFC 120

Dickons & Dickons [2012] FamCAFC 154

Elias and Elias (1977) FLC 90‑267

Erdem & Ozsoy [2012] FMCAfam 1323

Farmer & Bramley (2000)…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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