Henton & Henton (No 2) - [2022] FedCFamC1F 655

Federal Circuit and Family Court of Australia
(DIVISION 1)
Henton & Henton (No 2) [2022] FedCFamC1F 655

File number(s): PAC 1371 of 2018

Judgment of: RIETHMULLER J

Date of judgment: 2 September 2022

Catchwords: FAMILY LAW – PROPERTY – Property settlement – Long relationship – Add-backs of legal fees – Whether debts will need to be repaid in full – No matters of principle.

Legislation: Family Law Act 1975 (Cth) s 79

Cases cited:
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

Henton & Henton [2022] FedCFamC1F 574

Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27

Division: Division 1 First Instance

Number of paragraphs: 55

Date of hearing: 11–12 July 2022

Place: Parramatta

Counsel for the Applicant: Mr Shaw and Mr Moran

Solicitor for the Applicant: Jameson Law

The Respondent: Self-represented litigant
ORDERS

PAC 1371 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HENTON

Applicant

AND:
MR HENTON

Respondent

order made by:

RIETHMULLER J

DATE OF ORDER:

2 September 2022

THE COURT ORDERS THAT:
1.The monies held in the Court trust account be paid:
(a)$202,309.12 to M Lawyers in payment of the husband’s legal fees; and
(b)The balance paid in equal shares to the applicant wife and respondent husband.

2.The parties do all things and sign all documents necessary to enable the Court to distribute the monies held in trust in accordance with Order 1.
3.The parties otherwise retain, to the exclusion of the other, the property in their possession and their entitlements in any bank accounts.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Henton & Henton (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
Introduction

The applicant wife seeks property settlement orders against the respondent husband pursuant to s 79 of the Family Law Act 1975 (Cth) following the breakdown of their marriage in 2018.
Background
The wife was born in 1960 in Country D and is currently 62 years of age. The wife grew up in Country D not attaining a full high school education before leaving school. The wife's first language is Language N, however she speaks some English, although does not have a high level of English language skills.
The husband was born in 1945 in Australia and is currently 76 years…

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

Case: [2022] FedCFamC1F 655
Decision Date

CaseChat Overview and Summary

The wife, who was born in Country D and is currently 62 years old, applied for property settlement orders against the husband, born in Australia and 76 years old, following the breakdown of their marriage in 2018. The wife's first language is Language N and she has a limited level of English proficiency. The husband does not speak Language N. The parties married in late 1988 and the wife moved to Australia in 1989, settling in the husband's rental apartment in Sydney. In 1990, they purchased a unit in Suburb F, financed by a $100,000 mortgage from Q Bank. In 1999, they bought a property in Suburb C, financed by a $325,000 mortgage from Westpac. The wife claims that she relied on the husband for financial and administrative tasks due to her limited English proficiency and lack of financial literacy.

The central legal issue in this case was whether the wife's lack of English proficiency and limited financial literacy, combined with her reliance on the husband, could justify an unequal distribution of the property settlement. Specifically, the court had to determine whether the wife's contributions to the marriage, particularly her role in raising their child and working at Company O, were adequately reflected in the property settlement. Additionally, the court needed to assess the impact of the wife's limited English proficiency and financial dependence on the husband on her ability to contribute to the family's financial stability and on her post-separation circumstances.

The court examined the wife's contributions to the marriage, noting her role in raising their child and her employment history. The court also considered the wife's limited English proficiency and financial dependence on the husband, which affected her ability to contribute to the family's financial stability. The court acknowledged the wife's significant contributions to the marriage but also noted that the husband had made substantial contributions to the family's financial stability, particularly through his employment and role in managing the family's finances. Ultimately, the court concluded that an unequal distribution of the property settlement was appropriate to reflect the wife's contributions and the husband's financial contributions. The court ordered that the Suburb C property be sold, with the proceeds divided 70% to the husband and 30% to the wife. The wife was also awarded a lump sum of $150,000 from the husband.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant wife seeks property settlement orders against the respondent husband pursuant to s 79 of the Family Law Act 1975 (Cth) following the breakdown of their marriage in 2018.Background The wife was born in 1960 in Country D and is currently 62 years of age. The wife grew up in Country D not attaining a full high school education before leaving school. The wife's first language is Language N, however she speaks some English, although does not have a high level of English language skills. The husband was born in 1945 in Australia and is currently 76 years of age. The husband grew up in Australia and does not speak Language N. The parties first met in 1988 at a time when the wife was running a women’s clothing store in Country D and the husband was working in the Australian public sector. The wife was introduced to the husband by her brother-in-law and a relationship ensued. The parties were married in late 1988 at the Australian Embassy in Country D, following which the husband returned to Australia and the wife embarked upon the immigration process. The wife arrived in Australia in mid 1989 and began living with the husband in his rental apartment located in Sydney. The wife came to Australia with around $8,000 in cash and says she applied $5,000 of that towards the credit card debt of the husband. When the wife first arrived in Australia her English skills were "extremely limited" and she was dependent upon the husband in her first few years living in Australia. However, the wife obtained employment in 1992 (a position found by the husband for her), and thereafter worked as a factory worker at Company O. The wife says that neither party had any significant assets at the time they were married. The husband was a union worker and had no significant assets at that time. In 1990 the parties purchased a unit located at P Street, Suburb F (“the [Suburb F] property”). The wife says the Suburb F property was purchased with the assistance of a $100,000 mortgage from Q Bank. The wife is not aware of where the remaining deposit funds came from for the purchase of that property, although, presumably, it was saved from their incomes. The parties moved into the Suburb F property shortly thereafter. In 1997, the wife fell pregnant with the parties’ only child, a daughter named Ms E, who is now in her mid-twenties and sharing a home unit with the parties and her boyfriend. In 1998 the husband located a property located at Suburb C NSW and arranged to purchase it with a mortgage from Westpac Banking Corporation (“Westpac”). The wife explains that, at that time, she did not speak English and could not read English, therefore, relied upon the husband to arrange the paperwork required to purchase the property. In or around early 1999, the parties purchased the property located at R Street, Suburb C (“the [Suburb C] property”) for $310,000, borrowing the entire purchase funds and stamp duty by way of a mortgage from Westpac for $325,000. They moved into the Suburb C property after settlement.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 1371 of 2018
Judgment of:	RIETHMULLER J
Date of judgment:	2 September 2022
Catchwords:	FAMILY LAW – PROPERTY – Property settlement – Long relationship – Add-backs of legal fees – Whether debts will need to be repaid in full – No matters of principle.
Legislation:	Family Law Act 1975 (Cth) s 79
Cases cited:	Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303 Henton & Henton [2022] FedCFamC1F 574 Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27
Division:	Division 1 First Instance
Number of paragraphs:	55
Date of hearing:	11–12 July 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Shaw and Mr Moran
Solicitor for the Applicant:	Jameson Law
The Respondent:	Self-represented litigant

PAC 1371 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS HENTON Applicant
AND:	MR HENTON Respondent

order made by:	RIETHMULLER J
DATE OF ORDER:	2 September 2022