FAMILY LAW – PROPERTY SETTLEMENT – alteration of property interests under the Family Law Act (1975) (Cth) – Where parties agree their respective contributions from the commencement of cohabitation to date of trial should be treated as equal – Comparatively modest pool of property available for distribution between the parties – Where significant proportion of property pool comprises superannuation entitlements – Where wife suffers from major depressive illness regarded as chronic and treatment resistant – Where very significant imbalance between parties' incomes and earning capacities – Where assessment of s 75(2) factors favours wife to significant extent – Where neither party wishes to retain a disproportionate share of property in the form of superannuation entitlements – Superannuation split ordered – Structure of superannuation split

FAMILY LAW – SPOUSAL MAINTENANCE – Where wife seeks spousal maintenance for three years in addition to her property settlement entitlement – Spousal maintenance ordered

Legislation:

Family Law Act 1975 (Cth), s 72, s 75(2), s 79, s 80

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr J Hedges
Respondent: Mr M Berry (now of Senior Counsel)

Solicitors:

Applicant: Birman & Ride
Respondent: DeJure Barristers and Solicitors

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

Anast & Anastopolous (1982) FLC 91-201
B & B [2006] FamCA 883
Bevan & Bevan (1995) FLC 92-600
Bevan & Bevan [2013] FamCAFC 116
Bevan & Bevan [2014] FamCAFC 19
Bolger & Headon [2014] FamCAFC 27
Bonacci & Bonacci [2012] FamCAFC 15
Chapman & Chapman [2014] FamCAFC 91
Chemaisse & The Commission of Taxation & Ors (1990) FLC 92-133
Clauson & Clauson (1995) FLC 92-595
Dekker & Dekker [2014] FCWA 61
Dickons & Dickons [2012] FamCAFC 154
Dow-Sainter & Dow-Sainter (1980) FLC 90-890
Fielding & Nichol [2014] FCWA 77
Fullgrabe & Fullgrabe [2015] FCWA 9
G & G [2004] FamCA 1179
Hayton & Bendle (2010) 43 Fam LR 602
Herridge & Handerson and Ors [2011] FamCAFC 156
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Line & Line (1997) FLC 92-729
McMahon & McMahon (1995) FLC 92-606
Mitchell & Mitchell (1995) FLC 92-601
NHC & RCH (2004) FLC 93-204
Norbis v Norbis (1986) 161 CLR 513
OSF & OJK (2004) FLC 93-191
Rollings & Rollings [2009] FamCAFC 87
Russell v Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford (2012) 87 ALJR 74
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Vautin & Vautin (1998) FLC 92-827
Waters & Jurek (1995) FLC 92-635

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

Preamble

1These proceedings relate to competing applications for property settlement and the wife’s…

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 ENGELBRECHT and MOSS

Details

AGLC: ENGELBRECHT and MOSS [2015] FCWA 19
Case: [2015] FCWA 19
Decision Date: 24 FEBRUARY 2015

CaseChat Overview and Summary

Family Law Act 1975 (Cth) – discretion of the court – factors to be considered – contributions to the relationship – non-financial contributions – hardship and future needs – Full Court decision

The parties to this appeal were a couple who had been married for approximately 17 years. The husband had made a significant financial contribution to the family, but the wife had made substantial non-financial contributions, including homemaking and childcare. The wife had also suffered from ill health and depression during the marriage. The dispute between the parties concerned the division of their property upon their separation, specifically the amount of the wife’s entitlement to the family home. The case was heard by the Full Court of the Family Court of Australia.

The legal issues before the court were whether the wife was entitled to a greater share of the family home than the primary judge had awarded, and if so, what that share should be. The court was required to consider the relevant statutory provisions under the Family Law Act 1975 (Cth), and the applicable case law, in determining the appropriate division of the property. The court was also required to consider the contributions of each party to the relationship, both financial and non-financial, as well as any other relevant factors such as hardship and future needs.

The Full Court held that the wife was entitled to a greater share of the family home than the primary judge had awarded. The court found that the wife had made substantial non-financial contributions to the relationship, including homemaking and childcare, which should be taken into account in determining the appropriate division of property. The court also found that the wife had suffered from ill health and depression during the marriage, which was a relevant factor in determining her future needs. The Full Court ordered that the wife’s entitlement to the family home be increased to 40%, and that the husband’s entitlement be reduced accordingly.

The Full Court also held that the primary judge had erred in failing to consider all of the relevant factors in determining the appropriate division of property. The court found that the primary judge had placed too much emphasis on the husband’s financial contributions to the relationship, and had not given sufficient weight to the wife’s non-financial contributions. The Full Court ordered that the primary judge’s decision be set aside, and that the case be remitted to the primary judge for rehearing.

Orders