Gould & Gould

Case [2007] FamCA 609

FAMILY COURT OF AUSTRALIA

GOULD & GOULD [2007] FamCA 609

FAMILY LAW - APPEAL – PROPERTY – NON-DISCLOSURE – Whether a party’s contribution assessment can be discounted for non-disclosure of assets – Adequacy of reasons as to Section 75(2) adjustment – Appeal allowed

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Kannis & Kannis (2003) FLC 93-135

APPELLANT: Gould
RESPONDENT: Gould
FILE NUMBER: PT 4767 of 2002
APPEAL NUMBER: WA 07 of 2006
DATE DELIVERED:

22 June 2007

PLACE DELIVERED:

Perth

JUDGMENT OF:

Bryant CJ, Finn and Boland JJ
HEARING DATE: 16 October 2006
LOWER COURT JURISDICTION: Family Court of Western Australia
LOWER COURT JUDGMENT DATE: 4 April 2006

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Dickey QC
SOLICITOR FOR THE APPELLANT: Linda E Tudori & Associates
COUNSEL FOR THE RESPONDENT: Mr Hooper
SOLICITOR FOR THE RESPONDENT: Lewis Blyth & Hooper

Orders

  1. That the appeal be allowed.

  2. That the orders of the Honourable Justice Tolcon made 4 April 2006 be set aside.

  3. That the parties’ applications for property settlement be remitted for re-hearing.

  4. That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.

  5. That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.

  6. That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders. 

FAMILY COURT OF WESTERN AUSTRALIA
AT PERTH

Appeal Number: WA 07 of 2006
File Number: PT 4767 of 2002

Gould

Appellant

And

Gould

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an appeal by the husband against certain orders made by Tolcon J on 4 April 2006 with respect to property settlement and costs in proceedings between the husband and the wife under s 79 of the Family Law Act 1975 (Cth).

  2. The overall effect of his Honour’s orders was to divide equally between the parties the net value of their assets which he had found to be…

Continue reading Gould & Gould

Sign in free to access the full text

Details
AGLC
Gould & Gould [2007] FamCA 609
Case
[2007] FamCA 609
Decision Date

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, comprising Bryant CJ, Finn and Boland JJ, considered an appeal by the husband against an order made by a trial judge concerning the division of property. The dispute arose from the parties' marital relationship and the subsequent separation, leading to an assessment of their respective contributions to the acquisition, conservation, and improvement of their property.

The primary legal issue before the Full Court was whether the trial judge erred in assessing the parties' contributions as equal for the purposes of section 79(4)(a), (b), and (c) of the *Family Law Act 1975* (Cth). Specifically, the husband argued that the trial judge failed to consider the parties' separate living arrangements under one roof for a significant period, the wife's minimal contributions during that time and after physical separation, and improperly took into account the husband's lack of co-operation in disclosing his financial position when assessing contributions.

The Full Court found considerable substance in the husband's complaint regarding the inclusion of his lack of co-operation in the contribution assessment. While acknowledging that a party's conduct can be a relevant consideration in property adjustment proceedings, the court indicated that such conduct should generally be addressed as a separate factor under section 75(2) of the Act, rather than being conflated with the assessment of contributions under section 79(4). The court noted that the trial judge had stated he would have assessed contributions as 60:40 in favour of the husband but for other aspects of the case, suggesting that the non-disclosure was a significant factor in reaching an equal assessment of contributions.

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

His Honour’s ultimate findings in relation to the parties’ contributions and his conclusion that their contributions should be regarded as equal were then expressed as follows (emphasis added):23.However, I do take all of those factors into account when dealing with contributions and the general attitude of the husband towards the wife as to her contribution. I was satisfied on the evidence that the husband has made the greater financial contribution – taking into account the assets that he had at the commencement of cohabitation and the inheritance. I have also taken into account that the husband was predominantly responsible for farming the property. As against that, notwithstanding the husband does not agree, I am satisfied that the wife has made a substantial contribution as homemaker in rather difficult circumstances and that she assisted the husband in the farming venture as well as earning income which was utilised for the benefit of the family.24.When I balance up those contributions and taking into account the husband’s lack of co-operation in satisfying this court as to his true financial position, I would regard the parties’ contributions as being equal – and for the purposes of this exercise, I have not taken into account the inherited property. The husband’s first ground of appeal is directed to his Honour’s contribution assessment and (as slightly amended before us) is in the following terms:1. In assessing the parties’ contributions to property for the purposes of section 79(4)(a), (b) and (c) of the Family Law Act, the Trial Judge:(a)erred in failing to take into account the fact that the parties resided separately but under one roof from 1995 until physical separation in May 2001, and that during the intervening 6 years the wife made little… contribution either financially to the parties’ property, or as homemaker, or in assisting the husband in the farming venture;(b)erred in failing to take into account the fact that the wife had made little or no contribution either to property or to the welfare of the family since physical separation in May 2001;(c)erred in bringing into account an irrelevant consideration, namely the husband’s lack of co-operation in disclosing his true financial position [Reasons for Judgment, para. 24]. In our view there is considerable substance in the third of the husband’s complaints concerning his Honour’s assessment of the parties’ contributions as equal – that complaint being, the taking into account in the contribution assessment of “the husband’s lack of co-operation” in disclosing “his true financial position”. In endeavouring to establish that it was open to his Honour to adjust the contribution assessment in the wife’s favour because of the husband’s non-disclosure, counsel for the wife relied on the decision of the Full Court in Kannis & Kannis (which is reported in edited form in (2003) FLC 93-135). In that case the trial Judge, Holden CJ, having considered the parties’ contributions, concluded that:156. …But for other aspects of this case, I would have assessed contributions as being in the vicinity of 60:40 in favour of the husband.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.