[2005] FamCA 40
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE Appeal No. NA 28 of 2004
File No. (P)BRF 52 of 2003
IN THE MATTER OF:
GS
Appellant Husband
- and -
TS
Respondent Wife
REASONS FOR JUDGMENT
CORAM: Bryant CJ, Finn and Holden JJ
DATE OF HEARING: 8 October 2004
DATE OF JUDGMENT: 4 February 2005
APPEAL SUMMARY
MATTER:GS and TS
APPEAL NUMBER: NA 28 of 2004 ((P)BRF 52 of 2003)
CORAM:Bryant CJ, Finn and Holden JJ
DATE OF HEARING: 8 October 2004
DATE OF ORDER: 4 February 2005
DATE OF JUDGMENT: 4 February 2005
CATCHWORDS: FAMILY LAW – APPEALS – Property settlement – Whether the trial Judge failed to have proper regard to contributions by the appellant to properties, which the respondent inherited post-separation, and to the welfare of the family – Whether the trial Judge erred in failing to weigh the wife’s contributions to the acquisition of the properties against all other contributions of the parties.
Caselaw cited:
Aleksovski v Aleksovski (1996) FLC 92-705
Appeal dismissed.
No order as to costs.
This is an appeal by the husband against an order made by Bell J on 29 April 2004 in property settlement proceedings between the husband and the wife. Under the order, the wife was required to pay the husband the sum of $20,550.
In his reasons for judgment in relation to the order, his Honour had found that the parties’ property had a net value of $841,479; that on the basis of the parties’ contributions the property should be divided 90%-10% in the wife’s favour; that there should be an adjustment of 2.5% in favour of the husband on account of the matters contained in s 75(2) of the Family Law Act 1975 (“the Act”); and that accordingly the husband should retain or receive property to the value of $105,184 with the wife retaining the balance (being $736,295 on his Honour’s figures). Given that the husband had property to the value of $84,634 in his possession, the wife was accordingly ordered by his Honour to pay the husband the sum of $20,550.
The sole ground of appeal ultimately pursued by the husband is directed to his Honour’s assessment of the husband’s contributions and is in the following terms:
That in assessing the Husband’s entitlement to the property at 12.5% the Trial Judge erred in that he failed to have any proper regard to the evidence of the Husband’s contributions to the properties at [A] and [E] in the course of the marriage and to the welfare of the family.
In the event that his appeal succeeds, the husband would seek on a re-exercise of the discretion by us, an assessment of his contributions at 30%.
Background
For present purposes the factual background to this appeal can be briefly stated.
The husband was born in 1959 and the wife in 1961. They commenced to cohabit when they married in 1987. Their four children were born in 1988,…
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CaseChat Overview and Summary
The primary legal issue before the court was the appropriate assessment of the parties' contributions to their accumulated assets, particularly in light of significant financial assistance and property transfers received from the wife's parents. The court was required to consider the contributions made by each party both before and after separation, as well as the impact of inheritances received by the wife.
The court found that while the parties initially lived in a property owned by the wife's parents and received substantial financial assistance from them for the purchase of other properties, a significant portion of the assets ultimately came into the wife's possession through inheritance from her parents. The court acknowledged that both parties made some contributions to properties owned by the wife's parents, and that the parties jointly owned some assets at the time of separation. However, it concluded that the wife's inheritance, which occurred after separation, represented a "huge increase" in the parties' assets. The court determined that the husband's contributions to the parties' assets were comparatively minor, estimating them at no more than 10 percent, while the wife's contributions, primarily through her inheritance, were massive. The court also took into account the husband's lack of child support payments for a significant period after separation.
The court ordered that the husband's contribution to the parties' assets be assessed at 10 percent, with the wife receiving the remaining 90 percent.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In order to understand his Honour’s ultimate assessment of the parties’ contributions, it is necessary to have regard to the following findings in his judgment: 4.The parties commenced the marriage and cohabitation at a property [A]…owned jointly by the respondent's parents… They…continued to live there…until separation and the mother with the three girls still [resides] in that property. 5.Subsequent to marriage the parties…, with the quite generous assistance of the maternal grandparents…purchased various properties including a two-flat unit at [A]. I think this was in 1988. Some moneys were forwarded to enable the husband…to commence his business of [EC], which is still in existence and which is still run by the husband. 6.In 1989 he received a superannuation payment of something like five to six thousand dollars. It is said by the husband that out of this money he gave to the maternal grandfather…some $2500 to enable [the maternal grandfather] to rewire a property owned by [him] and his wife…at [E]. Whilst the husband is quite certain this took place the wife is unable to either accept or deny the payment of this money. She is saying she knows nothing about it. In that case I feel I have to accept that he made some contribution by way of a payment to [the maternal grandfather]. It is not known whether in fact it was used for the rewiring of the property or not. 7.As I said, the purchase of [A property] was with the assistance of the maternal grandmother. I think she lent something like $35,000 to the parties and this is rather the crux of the whole matter. There is [A property] which now is in the wife's name because initially her mother died, her father being the sole beneficiary under the will, then he died in 1999 and the wife was the sole beneficiary under his will. Consequently, as and by way of succession, she received the whole of the parent's interest in [A] and in [E].…9.The father has given evidence…of the amounts of contribution which he says he and the wife made to the property at [A]. The various properties, which the parties had owned, one of which were the flats at [A], were eventually all sold. Some moneys were paid to the wife's mother but it appears to me as though a substantial amount of the money lent to the parties as and by way, I think initially as a loan, subsequently became a gift since it was not repaid and the estate did not at any time seek recovery of the moneys owing to it. There was a very large contribution on the part of the respondent's parents.…12.…as I have said…the wife received as and by way of a bequest from her father eventually, the properties at [A] and at [E]. Both of these properties were quite valuable. I think the one at [A] is $560,000 and the [E]property…was already sold for something in excess of $200,000. …16.She also concedes that some amount of work was done by herself and her husband, as he then was, on the property of the maternal grandparents. She does not concede the extent as alleged by the husband but she concedes that some work was done on the property and some moneys were expended by the parties to assist in renovations or maintenance of some parts of the property. …18.…I emphasise the fact that they had made contributions to this property, albeit it was not in the possession of either of them at the time of the contributions and did not come into the possession of the mother until subsequent to the death of her father which was subsequent of course to separation. …20.…So far as the s79 factors are concerned, during cohabitation it could not be said that the husband made any large contribution to any property whatsoever other than the contributions that the wife concedes. He says that he spent more than what she says. … 21.I would have thought that it could not in any way be suggested that as at the date of the separation of the parties the contribution of the parties under s79 was other than around about 50/50. Thereafter, of course, the big difference arises. At the stage of their separation, I would think that about the only thing they could say that they own was the $9000 odd which was in a trust account and some items which they purchased for the former…matrimonial home…22.As I have said, and I will say again, after the separation came the huge increase in the assets of the parties, and when I say parties, this is by far and away the assets which came into existence as a result of the wife's benefiting under the will of her father. ……28.As I have said, by far and away the greatest contribution to the assets of the parties or either of them was by the wife through her parents. They were allowed to live rent-free in the [A] premises…since they married until separation. There is some half hearted attempts on the part of the father to suggest the $50 per week which was paid for some three years was in fact an attempt to repay some of the mortgage. Even if it was it was a joint payment by the applicant and the respondent. If it was not, it was something that would offset the boarding expenses that they should have had with the parents. They did pay some moneys towards rates but not frequently.29.There was a huge contribution on the part of the mother through her parents in so far as their ability to live virtually rent free in this property at [A], therefore releasing to them more of their moneys to invest in the various properties which I have here and before referred, I think three in number 30.Further, subsequently there was moneys advanced by the grandmother to the parties, which have not been repaid. It varies between $55,000 and $60,000, a considerable contribution that was forthcoming because of the special relationship, as I understand, between the wife and her parents. It could not be said that that 50/50, taking into consideration the subsequent contributions of the wife, could last. I would have thought that the husband’s contribution under the s79(4) factors could be no more than 10 percent. His is by far and away a comparatively minor contribution to the parties’ assets rather than the massive contribution, which have been given to the parties by the maternal grandparents through their love and affection for the wife.31.That of course is not the end of the matter. From separation the husband has paid little or no moneys as and by way of child support from separation for a period I think of about five years, the wife not only had the care and control of the three girls but also [B]. [B] appears to be a difficult boy and I would have thought he would not have been less than difficult while he was living with his mother for five years up until towards the end of 2001.