[2000] FamCA 1615
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No EA3 of 2000
AT SYDNEY File No NC1679 of 1998
BETWEEN:
WAYNE JOHN FARMER
Appellant Husband
- and -
ROBYN LILLIAN BRAMLEY
Respondent Wife
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: FINN, KAY & GUEST JJ
DATE OF HEARING: 6 & 7 June 2000
DATE OF JUDGMENT: 13 December 2000
APPEARANCES: Mr Richardson, Senior Counsel, instructed by Newnhams, Solicitors, 71122 Castlereagh Street, Sydney, appeared on behalf of the Appellant Husband
Mr Errington of Counsel, instructed by Hallett & Associates, 46 Main Street, Scone, NSW 2337appeared on behalf of the Respondent Wife.
FARMER and BRAMLEY
EA 3 of 2000
Coram: Finn, Kay & Guest JJ
Date of hearing: 6 June 2000
Date of judgment: 13 December 2000
PROPERTY- alteration of interests - post separation lottery win - modest financial circumstances during relationship- whether contributions must relate to present assets of the relationship
Adequacy of reasons - case focussing on ownership of lottery winnings with little emphasis on the manner they should be divided - whether result reached adequately explained
The parties commenced a defacto relationship in 1983 and married the next year. They both had children from previous relationships. There was one child of the marriage, S, born March 1985. The parties separated in January 1995 and were divorced in April 1997. During the relationship, the financial circumstances of the parties were extremely modest. H had suffered from drug-related problems in the early years of the marriage, and had been supported financially and emotionally by W during this period. After separation, S lived with H for approximately two years from 1996. At all other times S lived with W.
W remarried in 1997.
In September 1996, H won $5m in a lottery. H's assertion that he bought the winning ticket for his mother was rejected by Purdy J who held that the winning lottery ticket was purchased solely for H’s benefit.
Despite the lack of evidence in relation to the remaining amount of the winnings, his Honour adopted the figure of $5m as being available for distribution between the parties.
In determining what share the wife should receive his Honour made reference to 20% received by the wife for contribution in a post separation lottery case of Weber v Bradley (unreported Full Court 3 July 1998). His Honour found that in the 12 years the parties were together the wife made a very considerable contribution as "life cannot have been all roses for Mrs Bramley throughout the marriage". He said however that the principal concern was section 75(2)
"I intend to award the wife $750,000. This takes in the fact that the wife has less ongoing obligation to bring up the parties’ children than in Weber v Bradley but recognises the larger basic property amount available for allocation."
On appeal, H challenged the findings made that he owned the Lotto proceeds. He also contended that the trial Judge failed…
Continue reading Farmer & Bramley
Sign in free to access the full text
- AGLC
- Farmer & Bramley [2000] FamCA 1615
- Case
- [2000] FamCA 1615
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the extent to which property acquired by a party after separation could be considered in property adjustment proceedings under s 79 of the *Family Law Act 1975* (Cth). This involved determining whether such post-separation assets could be used to satisfy claims for financial support, particularly in relation to child-rearing responsibilities or disparities in earning capacity stemming from the marriage. The court also considered the proper interpretation of the phrase "just and equitable" within s 79(2) of the Act.
The court reasoned that while s 79(2) imposes a limitation on the court's power to alter property interests, requiring any such alteration to be "just and equitable," this discretion is not unbounded. The court held that the concept of "just and equitable" should be understood in the context of the "circumstances of the marriage relationship" and its breakdown. Therefore, disparities in wealth arising from circumstances occurring after separation, and not connected to the marital partnership, generally fall outside the constitutional reach of s 79. However, an exception exists where post-separation assets can be drawn upon to meet needs that arose from the marital relationship and could not be satisfied by assets acquired during the marriage, such as ongoing child support obligations or a significant disparity in earning capacity resulting from the division of roles during the marriage.
The court allowed the appeal, finding that the trial judge had erred in considering post-separation assets without a sufficient nexus to the marital relationship or its breakdown, beyond the limited exceptions identified. The matter was remitted for redetermination.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
A further basis for alteration of property interests of the parties from property acquired post-separation is the requirement (if appropriate to do so) to satisfy a claim by one party to financial support based on circumstances that arose during the marriage. For example, the ongoing requirement to support children. In those circumstances, the residence parent may look to assets acquired post-separation to assist in meeting, for example, child costs under s 75(2)(c) in much the same way as claims are met from post-divorce income when a court makes a spousal maintenance award. Another example is seen in James (supra). In that case, the wife helped out in various ways on a rural property that was owned by her father-in-law. In those circumstances, and in the light of an expectation, her contribution was taken into account as a contribution to that property when it was inherited by the husband following their separation. In my view however s 75(2) should be read down in this context. If a party has no claim to a post separation asset on the basis of contribution as the asset was not in existence at the time of that contribution, and there is no nexus between the marriage “partnership” of the parties and the “acquisition”, “conservation” or “improvement” of that property, the claimant, in my view, can only assert an interest in that asset in order to satisfy a “moral claim” which arises directly out of the marital relationship, and which cannot be met by recourse to other assets. For example, if there is a disparity in the earning power of the parties as a consequence of the role division each played in the course of the marriage (the wife for example surrendering her income earning prospects to nurture children of the marriage) and this cannot be met adequately by an unequal distribution of the assets acquired or otherwise enjoyed during the marriage, then it would be appropriate to meet that obligation out of a post separation acquired asset. In my view, this falls seamlessly into the language of s 79(2). The legislation does not say that the court should do “… whatever is just and equitable”. The legislation provides that the court should not make an order altering the property interests of the parties unless it is “… just and equitable” to do so. Section 79(2) is a clear limitation on the power of the court to alter interests in property. It is not an open ended jurisdiction to do so based upon subjective notions of a fair result or, “… unbounded distributive justice”. The constitutional context of this provision, in my view, suggests that the term “… just and equitable”, is to be understood as being in relation to the “… circumstances of the marriage relationship”. The power to alter the property interests of parties is conferred upon the court to address the inequities which might otherwise result as a consequence of the breakdown of the marriage. If the disparity of wealth, for example, does not arise from the breakdown of the marriage but from circumstances which occur after the separation between the parties, then the circumstances do not arise out of “… the marital relationship” or its breakdown, and is beyond the constitutional reach of s 79 to address those disparities. There is an exception however where the property acquired by one party after separation constitutes a fund which can be drawn upon to meet needs arising “… from the marital relationship”, which could not be met from assets acquired during the marriage.