FAMILY LAW – PROPERTY – Where proceedings commenced in the Court in 1984 but never finalised – Where the husband paid the wife $100,000 following separation – Where the husband contends that this payment constituted a final property settlement and the wife denies this – Where there was no written agreement – Where the husband contends there was a subsequent agreement in 2013 – Where neither of these alleged agreements were binding or approved by the Court – Where nothing in this case justifies departing from the starting point that the date for valuing the property pool is at trial - Where it is just and equitable to make an order adjusting the parties’ property interests – Where contributions during the marriage assessed as equal – Where the husband has made a greater post-separation contribution – Where the s 75(2) factors favour the wife – Where it is just and equitable to make an adjustment in favour of the wife in the vicinity of 30% of the total asset pool – Where the wife’s case was ultimately for 28.5% of the pool –Where the wife to be held to her case as put at trial and an adjustment of 28.5% in favour of the wife is just and equitable.
FAMILY LAW – JURISDICTION – Accrued – Single justiciable controversy – Adverse possession claim – Where the husband and wife are each registered proprietors as tenants in common of one half share of a property – Where the husband has been in exclusive possession of the property since 1992 – Where the husband has acquired the wife’s half share in the property by adverse possession from 2007 – Where the husband would not be in a position to seek to have the Registrar vest the land in fee simple in his favour until 2022 -Where property interests are nonetheless able to be altered under s 79 of the Act
Family Law Act 1975 (Cth), s 4(1), s 44(3), s 44(4), s 74, s 75(2), s 75(2)(a)(b)(d)(f) (g)(j)(k)(m)(n)(o), s 78, s 79, s 79(1), s 79(2), s 79(4), s 79(4)(a)-(c), s 79(4)(d)-(g), s 80(J)(k), s 85A, s 87, s 87(2), s 90G(1), s 90G(1A), s 90G(1B), s 90X
[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
DIXON & ELLIOT [2020] FamCA 1005
Case
[2020] FamCA 1005
Decision Date
CaseChat Overview and Summary
In the matter of *Dixon & Elliot*, McEvoy J of the Family Court of Australia considered a dispute concerning the property interests of a former husband and wife. The proceedings, which had commenced in 1984 but remained unresolved, involved the husband's assertion that a $100,000 payment made to the wife upon separation constituted a final property settlement, an assertion the wife denied. The court also had to consider the husband's claim of a subsequent agreement in 2013, neither of which had been formally binding or approved by the Court.
The primary legal issues before the court were whether the $100,000 payment or the alleged 2013 agreement represented a binding property settlement, and if not, how the parties' property interests should be adjusted. Additionally, the court was required to determine the appropriate date for valuing the asset pool and to consider the husband's claim of adverse possession over the wife's half share of a jointly owned property, which he had occupied exclusively since 1992. The court also had to assess whether it was just and equitable to make an order adjusting the parties' property interests under section 79 of the relevant Act.
McEvoy J reasoned that neither the 1984 payment nor the alleged 2013 agreement were binding settlements, and that there was no justification to depart from the general principle that property should be valued at the time of trial. The court found that the husband had acquired the wife's half share of the property by adverse possession from 2007, although he would not have been in a position to seek formal vesting of the land until 2022. Despite this, the court held that the property interests were nonetheless alterable under section 79. The court assessed the parties' contributions during the marriage as equal but acknowledged the husband's greater post-separation contributions. However, considering the section 75(2) factors favoured the wife, the court determined it was just and equitable to make an adjustment in her favour. Adhering to the wife's case as presented at trial, the court ordered an adjustment of 28.5% of the total asset pool in her favour. The parties were directed to confer and submit proposals for the further conduct of the proceeding, including orders to give effect to the reasons and all consequential matters, with a mention fixed for 16 December 2020.
Orders
Orders of the court
1.
On or before 4.00 pm on 15 December 2020, the parties are to confer and submit to the Court a joint proposal, or if they are unable to agree, separate proposals for the further conduct of the proceeding, including orders to give effect to these reasons and all consequential matters, including the costs of the proceeding.
2.
The matter is fixed for mention at 4.15pm on 16 December 2020.
Note: The form of the order is subject to the entry of the order in the Court’s records.