G and C - [2009] FCWA 43

[2009] FCWA 43

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	G and C [2009] FCWA 43
CORAM	:	PENNY J
HEARD	:	25 & 26 SEPTEMBER 2008
DELIVERED	:	30 APRIL 2009
FILE NO/S	:	PT 2969 of 2007
BETWEEN	:	G Applicant
AND
C Respondent
Catchwords:

Property settlement - de facto relationship - initial contributions of applicant now 98% of asset pool - respondent greater contributions to welfare of family - s 205ZD(3) factors favour respondent

Legislation:

Family Court Act 1997 - s 205ZG

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr S Jones
Respondent	:	Mr J Tydde

[2009] FCWA 43

Solicitors:

Applicant	:	Paterson & Dowding
Respondent	:	O'Sullivan Davies

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

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener)

(2003) FLC 93-143

Phipson and Phipson [2009] FamCAFC 28
Pierce v Pierce (1999) FLC 92-844

[2009] FCWA 43

1 The parties, [Mr G] and [Ms C], never married but lived in a de facto
relationship for approximately nine years. There is one child of that relationship, [Tania], born [in] 1999. The parties have been able to agree that [Tania] should reside with [Ms C] and [Mr G] will spend time with her on two weekends out of each three, and for half the school holidays. However, they have been unable to agree the manner in which their assets should be divided.

The issues

2 [Mr G] had purchased a property in [the metropolitan area] 10 years prior to the
parties living together. This property was the home in which they resided during the course of their relationship. At the commencement of the relationship [Ms C] had little in the way of assets. The [suburban] home is now the only asset of any significance owned by the parties. [Ms C] says she has made a considerable non- financial contribution to that property by way of her assistance in completing renovations during the course of the relationship and maintenance and renovations performed by her post-separation. [Mr G] disputes the extent of the contributions alleged by [Ms C].
3 [Tania] suffered from medical issues as an infant. She refused to eat and was
fed through a tube until she was three years old. She has also suffered from developmental delay. [Ms C] says she has made a significantly larger contribution to the welfare of the family than has [Mr G] as a result of the care she has given [Tania] while the parties were living together and since separation.
4 [Ms C] alleges she has a limited capacity for work as a result of suffering from
Chronic Fatigue Syndrome. [Mr G] disputes this fact and says that [Ms C]’s ability to earn is greater than submitted by her.

The position of each of the parties

5 [Mr G]’s case is that the assets of the parties, of which the home in [the

metropolitan area] represents 98%, should be divided 35% to [Ms C]…

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 G and C

Details

AGLC: G and C [2009] FCWA 43
Case: [2009] FCWA 43
Decision Date: 30 APRIL 2009

CaseChat Overview and Summary

The case involved G, the applicant, and C, the respondent, who were in a de facto relationship. The dispute centred on the division of their property under the Family Law Act. The applicant argued that her initial contributions to the relationship, which constituted 98% of their combined assets, should outweigh the respondent's subsequent contributions to the welfare of the family. The matter was heard in the Family Court of Australia.

The court had to determine whether the applicant's initial financial contributions should be given greater weight than the respondent's contributions to the family's welfare, and whether these contributions should be balanced against each other in accordance with section 205ZD(3) of the Family Law Act. The court considered the various factors listed in section 205ZD(3), which include the nature and extent of direct and indirect contributions by each party, and the duration of the relationship.

The court held that while the applicant's initial financial contributions were significant, the respondent's contributions to the welfare of the family were also considerable and should not be overlooked. The court found that the factors in section 205ZD(3) favoured the respondent, as they balanced the applicant's financial contributions with the respondent's contributions to the family's welfare. The court emphasised that both parties' contributions should be considered holistically, and that there was no automatic hierarchy between financial and non-financial contributions.

The court ordered that the property settlement should reflect the overall contributions of both parties, with the respondent receiving a greater share of the assets. The court also noted that the division of property was not necessarily equal, but should be just and equitable in all the circumstances. The final orders were made in accordance with the court's findings and the provisions of the Family Law Act.

Orders