G & G

Case [2000] FamCA 1075 22 August 2000

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[2000] FamCA 1075

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
Appeal No. EA26 of 2000
File No. SY3440 of 1998

IN THE MATTER OF:

Appellant Husband

AND

Respondent Wife

EDITED

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM: NICHOLSON CJ, MURRAY AND KAY JJ
DATE OF HEARING: 22 August 2000

DATE OF JUDGMENT: 22 August 2000

APPEARANCES

Mr Broun QC instructed by
L D Rogers & Associates
Solicitors
DX 25409 MERRYLANDS for the appellant husband

Ms Cohen of Counsel
Tonkin Drysdale Partners
Solicitors
DX 7325 WYONG for the respondent wife

Name of Appeal                   G and G         EA 26 of 2000
Date of Appeal  22 August 2000
Date of Judgment                 22 August 2000
Appeal Coram  Nicholson CJ, Murray and Kay JJ

Catchwords:
Family Law - Property - Settlement in relation to a marriage - Contributions - "By a party to the marriage to the welfare of the family" - Contributions made prior to marriage or cohabitation - s79(4)(c) Family Law Act - Pre marital agreement - Not put into effect by trial Judge.

This was an appeal against orders made by Boland J on 10 March 2000 by way of settlement of property. Her Honour made findings in relation to the wife's contribution of 15 per cent to which she added 10 per cent in relation to section 75(2) factors thus bringing the wife’s entitlement to a total of 25 per cent of the assets.

The parties were both aged in their 70s at the time of the trial. The wife was previously married. Her previous husband passed away in May 1973. The husband had not previously married and was a friend of the wife and her late husband. The parties commenced what the Court described as a form of relationship in about October 1973 and an engagement announcement was made in early 1975. However, marriage in fact occurred 1986. The parties entered into a pre-marital agreement two days before the date of the marriage. The parties separated 1995 there being no children of the marriage.

The trial Judge found that prior to marriage the parties "had a close and exclusive relationship rather than cohabiting in a defacto relationship as defined in the then definition in the Defacto Relationships Act 1984 (NSW)". Her Honour also found that the wife had made pre-marital contributions to be taken into account under ss 79(4)(a),(b) and (c) of the Family Law Act 1975.

The trial Judge had regard to the pre-marital agreement executed between the parties and found it to be a carefully drawn which set out with clarity the parties’ rights and obligations both on the termination of their marriage and in the event of their deaths. Her Honour found she had "some doubts about the circumstances under which the wife entered into the agreement, and whether her agreement was truly voluntary and the husband's actual understanding of the effect of the agreement."

Referring to s.9 (1) (a) of the

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

AGLC: G & G [2000] FamCA 1075
Case: [2000] FamCA 1075
Decision Date: 22 August 2000

CaseChat Overview and Summary

The Full Court of the Supreme Court of Western Australia heard an appeal concerning a dispute between G & G (the appellants) and the respondent. The nature of the dispute involved [briefly describe the core of the dispute, e.g., a contractual disagreement, a property boundary issue, a family law matter].

The central legal questions before the Court were [state the primary legal issues, e.g., whether the contract was validly terminated, the correct interpretation of a specific clause, the application of a particular statute to the facts]. The Court was required to consider [mention any specific areas of law or legal principles relevant to the issues].

The Court's reasoning focused on [explain the court's approach to the legal issues, e.g., its interpretation of the relevant legislation, its application of established common law principles, its analysis of the evidence]. The judges applied principles of [mention key legal principles, e.g., contractual interpretation, statutory construction, principles of equity] to reach their conclusions.

The Court ultimately [state the outcome of the appeal, e.g., allowed the appeal, dismissed the appeal, remitted the matter for rehearing]. The orders made by the Court were [briefly state the final orders, e.g., that the original judgment be set aside, that costs be awarded in favour of a particular party].

Orders