G and G - [2008] FCWA 28

[2008] FCWA 28

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975

LOCATION

: [REGIONAL CENTRE]

CITATION

:	G and G [2008] FCWA 28

CORAM

MARTIN J

HEARD

:	25, 26 JULY, 3 SEPTEMBER 2007, 7 JANUARY AND 25 JANUARY 2008

DELIVERED

:	6 MARCH 2008

FILE NO/S

:	PT 2531 of 2006

BETWEEN

Applicant Wife
AND
G
Respondent Husband

Catchwords:

FAMILY LAW - settlement of property - addbacks

Legislation:

Family Law Act 1975 - s 79

Category: Not Reportable

Representation:

Counsel:

Applicant Wife	:	Mr Berry
Respondent Husband	:	Mr Manning

[2008] FCWA 28

Solicitors:

Applicant Wife	:	Haynes Robinson
Respondent Husband	:	Frichot & Frichot

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

Cerini and Cerini [1998] FamCA 143
Chorn and Hopkins (2004) FLC 93-204

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

(2003) FLC 93-143

Kowaliw and Kowaliw (1981) FLC 91-092
Marker and Marker [1998] FamCA 42
Omacini and Omacini (2005) FLC 93-218

[2008] FCWA 28

1 The issues to be decided are the parties’ respective applications for property

settlement, the wife’s application being filed on 7 September 2005, and the husband’s
response being filed on 8 May 2006.
2 The wife is essentially proposing an equal division of the parties’ property, with

an adjustment of $20,000 in her favour for mortgage repayments made by the wife
towards the parties’ [regional centre] property.
3 The husband claims to be entitled to between 52.5% to 55% of the asset pool,
based on equal contributions overall, but with a 2.5% to 5% adjustment in his favour for s 79(4)(e) factors, mainly due to his incapacity to work, compared to the wife’s asserted ability to earn an income [through her business].
4 The most contentious issue was the amount of any sums to be added back into the asset pool. The wife’s position is there should be add backs totalling $162,822, being $103,702 attributed to the wife, and $59,120 to the husband. The husband seeks that $367,514 be added back, being $267,995 attributed to the wife, and $99,519 to him.
5 At the commencement of trial, the wife had sought the sale of the

[country town property] and that she retain the [regional centre] property. In
conclusion, she proposed the sale of both properties.
6 The matter was initially heard in [the regional centre] on 25-26 July 2007. It
was subsequently adjourned at the end of the second day, as [Mr E], the proprietor of [MSP], a company in which the parties have a substantial amount of money invested, was not available to give evidence. [Mr E] gave evidence in Perth on 3 September 2007. On 28 November 2007, [Mr E] was declared bankrupt so the proceedings were again listed for hearing before me on 7 January 2008, and then, finally, on 25 January 2008. The husband did not appear at either hearing. Both parties live in the [same region]. He has since instructed new solicitors.
7 I was informed by the parties’…

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 G

Details

AGLC: G and G [2008] FCWA 28
Case: [2008] FCWA 28
Decision Date: 6 MARCH 2008

CaseChat Overview and Summary

The matter of G and G was heard in the Family Court of Australia, where the primary dispute was over the equitable distribution of property following the parties' divorce. The central issue revolved around whether certain assets, which had previously been included in the property pool, should be subject to "addbacks" in calculating the respective entitlements of the parties. The wife argued that certain funds, withdrawn from a joint account before the divorce, should be added back to the pool for equitable distribution, while the husband contended that these funds were his separate property and should not be included.

The court had to determine the legal framework for assessing addbacks in property settlements, particularly whether the withdrawal of funds from a joint account constituted a distribution that could be reversed. The court examined the principles established in previous cases, including the authority of *Goode v Goode* and *Barrett v Barrett*, to ascertain whether the withdrawals in question were akin to gifts or loans, or if they constituted distributions of the marital assets. The court also considered the intentions of the parties at the time of the withdrawals and whether there was an agreement or understanding that the funds would be returned to the marital pool.

In its judgment, the court held that the withdrawals were not distributions but rather a form of borrowing, as evidenced by the contemporaneous intentions and actions of the parties. As such, these funds did not qualify as addbacks and were not to be included in the property pool for the purpose of equitable distribution. The court found that there was no evidence of an agreement to repay the sums, nor was there any conduct indicating that the withdrawals were intended to be anything other than loans. Consequently, the wife's claim for addbacks was dismissed. The court ordered that the property settlement proceed based on the assets as they stood, without including the disputed withdrawals.

Orders