Feinster & Feinster and Anor - [2006] FamCA 232

FAMILY COURT OF AUSTRALIA

WILLIAMS & WILLIAMS

[2007] FamCA 313

FAMILY LAW - APPEAL – Property settlement – Contributions – 10 year relationship – Husband sought a greater acknowledgment of his contribution to the asset pool – Husband’s contribution of a property and farming business conducted thereat substantially increased in value since commencement of cohabitation – Whilst it was valid to look at the worth of contribution as at the date of the trial rather than it’s initial value, consideration of other contributions, a lack of evidence attributing increase in value to forces other than the mutual effort of the parties, and the inclusion of the wife’s assets in the asset pool that had also increased in value meant that the weight given to the husband’s contributions at 57.5% to the wife’s 42.5% was not outside an acceptable range.

Family Law Act 1975 (Cth)
Property (Relationships) Act (1984) NSW

Bilous v Mudaliar (2006) 35 Fam LR 55
Bremner v Bremner (1995) FLC 92-560; (1994) 18 Fam LR 407
Clauson v Clauson (1995) FLC 92-595; (1995) 18 Fam LR 693
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716; (1979) 5 Fam LR 719
House v The King (1936) 55 CLR 499
Hunt v Zuryn (2005) FLC 93-226; (2005) 34 Fam LR 169
Kardos v Sarbutt (2006) 34 Fam LR 550
Money v Money (1994) FLC 92-485; (1994) 17 Fam LR 814
Pierce v Pierce (1999) FLC 92-844; (1998) 24 Fam LR 377

APPELLANT:

MR W

RESPONDENT:

MS W

FILE NUMBER:

NCF

680

2004

APPEAL NUMBER:

2006

DATE DELIVERED:

11 APRIL 2007

PLACE DELIVERED:

SYDNEY

JUDGMENT OF:

KAY, COLEMAN & STEVENSON JJ

HEARING DATE:

29 MARCH 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

24 FEBRUARY 2006

LOWER COURT MNC:

[2006] FamCA 208

REPRESENTATION

COUNSEL FOR THE APPELLANT:

MR PAGE, SENIOR COUNSEL

SOLICITORS FOR THE APPELLANT:

BOYD OLSEN LAWYERS

COUNSEL FOR THE RESPONDENT:

MR BATEY WITH MR LEVY

SOLICITORS FOR THE RESPONDENT:

MULLANE & LINDSAY

Orders

The appeal is dismissed.
The appellant pay the respondent’s costs of the appeal as agreed or failing agreement as assessed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Williams v Williams.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT

Appeal Number: EA 34 of 2006
File Number: NCF 680 of 2004

MR W

Appellant

And

MS W

Respondent

REASONS FOR JUDGMENT

This is the husband’s appeal against orders made by Watts J in property proceedings on 24 February 2006. The effect of the orders was to divide an asset pool worth approximately $3.7 million as to 57½ per cent to the husband and 42½ to the wife.
In his Notice of Appeal the husband seeks orders that would increase his share of the asset pool by a further 10 per cent or $367,950. In his oral submissions Mr Page SC on behalf…

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.

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Details

Case: [2006] FamCA 232
Decision Date: 11 APRIL 2007

CaseChat Overview and Summary

The appeal concerned a dispute between the parties regarding the alteration of property interests. The court was required to determine whether the trial judge had erred in their assessment of the parties' respective contributions and the just and equitable distribution of their property.

The central legal issue was the proper application of the principles governing property settlement proceedings, particularly in relation to the assessment of financial and non-financial contributions and the overall just and equitable outcome. The court considered the provisions of the relevant legislation, which mandates consideration of financial contributions, non-financial contributions, contributions to the welfare of the family, the effect of orders on earning capacity, and other relevant circumstances.

The court reasoned that the trial judge had correctly applied the statutory principles. It noted that while the legislation was similar to section 79 of the *Family Law Act 1975* (Cth), the specific facts of the case required a careful balancing of the various factors. The court affirmed that the trial judge's division of the capital growth, after accounting for initial capital and a minor allowance for the use of one party's property, represented a just and equitable outcome in all the circumstances.

The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal.

Orders

Orders of the court

The appeal is dismissed.

The appellant pay the respondent’s costs of the appeal as agreed or failing agreement as assessed.

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

The legislation is similar to but not identical with s 79 of the Family Law Act 1975 (Cth) (“the Act”) that (in so far as is relevant) provides as follows:Alteration of property interests(1) In property settlement proceedings, the court may make such order as it considers appropriate:(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; ……(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.…(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and(e)the matters referred to in subsection 75(2) so far as they are relevant; and…75 (2) The matters to be so taken into account are:…(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account… In Kardos v Sarbutt (2006) 34 Fam LR 550 the parties had lived together for three years. There were no children of their relationship. At the commencement of the relationship the appellant owned real estate worth $290,000 which at the time of trial was worth $683,500. The respondent owned real estate at the commencement of the relationship worth $241,000 which at the time of the hearing was worth $405,400. During the course of the relationship the appellant had earned $190,000 while the respondent had earned $110,000. At the trial each received a return of their initial capital and otherwise shared equally in the combined capital growth, subject to a minor allowance for the fact that one of the parties had provided the use of her house as the parties’ joint residence.