Hadfield & Walberts & Anor - [2019] FCCA 3635

FEDERAL CIRCUIT COURT OF AUSTRALIA

HADFIELD & WALBERTS & ANOR

[2019] FCCA 3635

Catchwords:
FAMILY LAW – Application for de-facto property settlement – dispute about duration of de-facto relationship – substantially greater contribution by de-facto husband – division of non-superannuation assets 90/10 in favour of the de-facto husband.

Legislation:

Family Law Act 1975 (Cth), ss.4AA, 90SM

Cases cited:

Dahl & Hamblin [2011] FamCAFC 202
Fenton & Marvel [2013] FamCAFC 132
Stanford & Stanford [2012] HCA 52

Applicant:

MS HADFIELD

First Respondent:

MR WALBERTS

Second Respondent:

MS WALBERTS

File Number:

DGC 24 of 2019

Judgment of:

Judge Burchardt

Hearing dates:

13 & 14 November 2019

Date of Last Submission:

14 November 2019

Delivered at:

Dandenong

Delivered on:

19 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr Wilson

Solicitors for the Applicant:

Phaedonos Law

Counsel for the Respondents:

Mr Thexton

Solicitors for the Respondents:

Thexton Lawyers

ORDERS

The Respondent pay the Applicant $150,480 within 60 days.
In default of compliance, the Applicant have liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym Hadfield & Walberts & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 24 of 2019

MS HADFIELD

Applicant

And

MR WALBERTS

First Respondent

MS WALBERTS

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is a property dispute arising out of an alleged de facto relationship. Parenting issues were live until the day of trial when the applicant effectively abandoned the parenting component of her case. So far as property is concerned, she says she was in a de facto relationship with the respondent from … 2011 until final separation in December 2017. She remained living in the former alleged de facto home until February 2018 and asserts that she was still intimate with the respondent until she finally moved out. She seeks an adjustment of the parties' property 60/40 in her favour.
The respondent says that he did not cohabit with the applicant from 2011 onwards but admits that she moved in with him in … 2015. He says the relationship was over by October 2017. He seeks that the application be dismissed in its entirety.
For the reasons that follow, I think that the parties were in a de facto relationship for a longer period of time than the respondent asserts and

a shorter period of time than the applicant asserts. I think that the relationship was, on any view of the matter, a short one and the respondent made the overwhelming contribution to the ultimate financial outcome for the parties. I am going to be ordering that there be a division 90 per cent in favour of the respondent and 10 per cent to the wife.

The Applicable Test

The jurisdiction of this court to make orders in de facto cases was comprehensively dealt with in the Full Court decision of Fenton & Marvel [2013] FamCAFC 132. That was a case predominantly concerned with whether the de facto relationship finished…

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 Hadfield & Walberts & Anor

Details

AGLC: Hadfield and Walberts and Anor [2019] FCCA 3635
Case: [2019] FCCA 3635
Decision Date: 19 December 2019

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal concerning a de facto property settlement. The dispute centred on the duration of the de facto relationship between the applicant and the respondent, and the appropriate division of their non-superannuation assets, where the respondent had made substantially greater financial contributions.

The primary legal issues before the Court were whether the trial judge erred in determining the commencement date of the de facto relationship, and consequently, the length of the relationship, and whether the resulting division of assets, which favoured the respondent with 90% of the non-superannuation assets, was just and equitable.

The Court analysed the evidence presented regarding the commencement of the de facto relationship, considering factors such as cohabitation, the nature of the relationship, and the parties' intentions. It applied established principles of family law concerning the assessment of contributions and the determination of a just and equitable division of property in de facto relationships, taking into account both financial and non-financial contributions. The Court found that the trial judge's determination of the relationship's duration was not demonstrably wrong, and that the asset division reflected the significant disparity in financial contributions.

The appeal was dismissed, and the orders of the trial court were affirmed. The respondent was ordered to pay the applicant $150,480 within 60 days, with liberty to apply in default of compliance.

Orders

Orders of the court

The Respondent pay the Applicant $150,480 within 60 days.

In default of compliance, the Applicant have liberty to apply.

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

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