FAMILY COURT OF AUSTRALIA
| MABB & MABB AND ANOR | [2020] FamCAFC 18 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Contributions – Where the husband’s parents transferred a property to the parties jointly – Where the husband challenges her Honour’s finding that the property was intended by his parents to be gifted to both parties – Where the husband contends that property was to be gifted solely to him – Where the benefit of the gift is dependent on the intention of the husband’s parents at the time of transfer – Where the evidentiary onus lies on both parties to establish facts to support their contentions – Where the transfer of land to the parties jointly is a strong indicator of intention – Where the husband’s challenges are not made out – Where her Honour’s conclusion was open on the evidence – Where the husband challenges her Honour’s finding that the husband’s conduct in deliberately refusing to accept offers of sale had a direct financial effect on the parties – Where there is no error in her Honour’s finding or approach – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 75(2), 79 |
| Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gosper and Gosper (1987) FLC 91-818; [1987] FamCA 43 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27 Kessey and Kessey (1994) FLC 92-495; [1994] FamCA 162 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 |
| Bell, Virginia, AC, “Appellate review of the facts” (2014) 39 Australian Bar Review 132 |
| APPELLANT: | Mr Mabb |
| RESPONDENT: | Ms Mabb |
| INTERVENOR: | Ms B Mabb by her Case Guardian Ms Scrivener |
| FILE NUMBER: | PTW | 5491 | of | 2016 |
| APPEAL NUMBER: | WEA | 42 | of | 2018 |
| DATE DELIVERED: | 31 January 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Kent JJ |
| HEARING DATE: | 15 October 2019 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 26 October 2018 |
| LOWER COURT MNC: | [2018] FCWAM 140 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Beckerling |
| SOLICITOR FOR THE APPELLANT: | Culshaw Miller Lawyers |
| RESPONDENT: | In person |
| INTERVENOR: | No appearance |
Orders
The appeal WEA 42 of 2018 against the orders of Magistrate Walter made on 26 October 2018 is dismissed.
The Application in an Appeal filed by the appellant on 26 September 2019 is dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mabb & Mabb and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons…
Continue reading Mabb & Mabb
Sign in free to access the full text
Details
- AGLC
- Mabb & Mabb [2020] FamCAFC 18
- Case
- [2020] FamCAFC 18
- Decision Date
CaseChat Overview and Summary
In the case of Mabb & Mabb, the Federal Circuit Court of Australia considered the division of property following a divorce. The central dispute involved the characterisation of a gift of land from the wife's parents to both the husband and wife. The court had to decide whether this gift should be considered as a financial contribution made directly by the wife or as a joint contribution by both parties. The legal issue at the core of this case was how to interpret Section 79 of the Family Law Act 1975, particularly in relation to gifts made by relatives to both spouses.
The court's reasoning was grounded in the established principles from previous cases such as Rainbird and Read, which emphasised the importance of determining the true intention of the donor when a gift is made to both parties. The court found that the gift of the land was intended to benefit both spouses, not just the wife, as the evidence indicated that the parents expected future support from both parties in return for the gift. This evidence distinguished the current case from Gosper, where the gift was motivated solely by the relationship between the donor and one spouse. The court concluded that the gift should be treated as a joint contribution rather than solely the wife's contribution.
Consequently, the court dismissed the appeal and the application in the appeal, maintaining the orders made by Magistrate Walter. The court also made no order as to costs, subject to the entry of the order in the Court's records.
The court's reasoning was grounded in the established principles from previous cases such as Rainbird and Read, which emphasised the importance of determining the true intention of the donor when a gift is made to both parties. The court found that the gift of the land was intended to benefit both spouses, not just the wife, as the evidence indicated that the parents expected future support from both parties in return for the gift. This evidence distinguished the current case from Gosper, where the gift was motivated solely by the relationship between the donor and one spouse. The court concluded that the gift should be treated as a joint contribution rather than solely the wife's contribution.
Consequently, the court dismissed the appeal and the application in the appeal, maintaining the orders made by Magistrate Walter. The court also made no order as to costs, subject to the entry of the order in the Court's records.
Orders
Orders of the court
1.
The appeal WEA 42 of 2018 against the orders of Magistrate Walter made on 26 October 2018 is dismissed.
2.
The Application in an Appeal filed by the appellant on 26 September 2019 is dismissed.
3.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
His Honour stated at 76,167–76,168, after that review:Where there has been a gift or advance by a relative to one or both of the parties to the marriage the first step is to determine the ownership of that benefaction (see Rainbird; Read). Confusion often arises at this point because, particularly with gifts of money or in kind, the evidence about it is confused and imprecise and the actual intention of the donor (the critical issue) may have been ill-defined. However, where the evidence enables the Court to determine that it is a gift to one or other or both of the parties, that is an important finding. Normally where title to a property is transferred to one or both of the parties that would be the strongest indicator of the intention of the donor.In this particular case it is clear that the gift of the land at McCrae was a gift by the wife’s father to both of the parties jointly. The evidence and the transfer into their joint names makes that clear and indeed the wife’s counsel did not really contend to the contrary.…The next step is to consider the application of sec. 79 to all of the property of the parties, including property received by one or both of them by way of benefaction from a third party. ...Where a gift is made solely to the donor’s relative (for example a gift by parents to their married daughter) and that spouse applies that property to the marriage, that is a direct financial contribution solely by that party and will be assessed in the ordinary way alongside other contributions by each party to the marriage……The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to [the] Court in such a case to look at the actuality and treat that as a “financial contribution made directly... on behalf of'” the spouse relative…In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made “because she was a daughter of that family” as was said in W.’s case at p. 75,527.…In other cases the evidence, including evidence that the donor intended to benefit both spouses, may not justify that conclusion. If so, the application by the parties of that property to the marriage would, at least at that point, be an equal contribution by them.(Emphasis added) In the case before Fogarty J, his Honour concluded on the evidence that whilst the gift of the subject land was to the parties jointly, “it is clear that the motivating circumstance was the relationship between the wife’s parents and the wife and it was transferred to benefit her and because she was a daughter” (Gosper at 76,168). On that basis, in assessing contributions under s 79(4) of the Act, that contribution was treated as that of the wife solely. In this case, as in Gosper, the land was transferred to both parties being the “strongest indicator of the intention of the donor.” Turning to the assessment of contributions, however, the clear distinction in this case from Gosper is that here there exists evidence that the donors intended to benefit both spouses, not simply the relative spouse. The motivating circumstance in this case was not solely the relationship between the husband’s parents and the husband. The motivating circumstance, on the undisputed evidence, included that, in return for the transfer of land, the parents were to achieve the benefit of an assumed obligation, by both parties, for their future support, as well as the opportunity for the parents to continue to live on the property as they apparently desired.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.