Kazama and Britton (No. 2) - [2013] FamCA 545

FAMILY COURT OF AUSTRALIA

KAZAMA & BRITTON (NO. 2)

[2013] FamCA 545

FAMILY LAW – PROPERTY – de facto relationship – where the de facto wife seeks an 85/15 split in the de facto husband’s favour – where the de facto husband asserts the de facto wife made limited contributions – findings made on 15 January 2013 in relation to the parties’ de facto relationship – where the de facto husband sponsored the de facto wife to immigrate to Australia and made representations to the Department of Immigration as to the de facto wife’s contributions.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Kazama

RESPONDENT:

Mr Britton

FILE NUMBER:

CSC

543

2011

DATE DELIVERED:

19 July 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Cairns

JUDGMENT OF:

Watts J

HEARING DATE:

11-12 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Morzone

SOLICITOR FOR THE APPLICANT:

Murray Lyons Solicitors

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

By way of alteration of property pursuant to s 90SM Family Law Act 1975 (Cth), the de facto husband pay to the de facto wife the sum of $195,000 within a period of two months.

The de facto wife is granted liberty to make an application on 14 days notice in respect of the enforcement of Order 1 in the event the de facto husband does not comply with the order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kazama & Britton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 543 of 2011

Ms Kazama

Applicant

And

Mr Britton

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The parties in this matter were in a de facto relationship for six years and 10 months. A feature of the relationship was that for most of that time the parties were not together at night.

APPLICATIONS

The de facto wife is seeking 15 percent of the overall net assets on the basis of contributions and s 90SF Family Law Act 1975 (Cth) (“FLA”) factors. The de facto husband seeks no adjustment be made.

DOCUMENTS RELIED UPON

The de facto wife relied on the following:
3.1.Initiating Application filed 6 September 2011
3.2.De facto wife’s affidavit filed 6 September 2011
3.3.De facto wife’s affidavit filed 4 March 2013
3.4.Financial statement filed 20 November 2012
3.5.Financial statement filed 12 March 2013
The de facto husband relied on the following:
4.1.De facto husband’s affidavit filed 13 February 2012
4.2.Financial Statement filed 6 December 2012

SHORT HISTORY

The de facto husband was born in 1926 and is now aged 87.
The de facto wife was born in 1952 and is now aged 61.
The parties commenced a de facto relationship on 9 November 2002.
The parties separated on 9 September 2009.

CREDIT

Although I had made credit findings against the de facto husband in the hearing that led to a declaration being made under s 90RD(2)(a) FLA as…

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 Kazama and Britton (No. 2)

Details

AGLC: Kazama and Britton (No. 2) [2013] FamCA 545
Case: [2013] FamCA 545
Decision Date

CaseChat Overview and Summary

In *Kazama & Britton (No. 2)* [2013] FamCA 545, the Family Court of Australia was asked to determine property adjustment orders following the breakdown of a de facto relationship between Ms Kazama (the de facto wife) and Mr Britton (the de facto husband). The de facto wife sought an 85/15 split of the net assets in the de facto husband's favour, while the de facto husband asserted that the de facto wife had made limited contributions to the relationship. The court had previously made findings on 15 January 2013 regarding the existence and nature of the de facto relationship, including the de facto husband's sponsorship of the de facto wife's immigration to Australia and representations made to the Department of Immigration concerning her contributions.

The primary legal issues before the court were to identify and value the parties' property, assets, financial resources, and liabilities according to common law and equitable principles. The court was then required to determine whether it was just and equitable to make an order altering the parties' interests in these assets. If so, the court needed to identify and assess the relevant contributions of each party and consider the matters set out in section 90SF of the *Family Law Act 1975* (Cth) before determining the appropriate adjustment to the property.

The court's reasoning was significantly influenced by its previous findings, particularly concerning the credibility of the de facto husband's evidence. The court found that the de facto husband's version of events was inconsistent with documentary evidence, including a Form 40SP submitted to the Department of Immigration and notes from an interview with a departmental officer. Consequently, the court placed little reliance on the de facto husband's evidence and generally accepted the de facto wife's account of events. The court also noted the de facto husband's inconsistent valuations of his assets, which undermined confidence in his financial disclosures. The court applied principles of property adjustment under the *Family Law Act 1975* (Cth), considering both financial and non-financial contributions, as well as the specific circumstances of the parties, including their ages and the nature of their relationship.

The court ordered the de facto husband to pay the de facto wife the sum of $195,000 within two months as an alteration of property interests pursuant to section 90SM of the *Family Law Act 1975* (Cth). The de facto wife was granted liberty to apply for enforcement of this order should the de facto husband fail to comply.

Orders