Legal Research
Cases
MIB v JAP

MIB v JAP

Case [2019] WASCA 175 (S) 15 November 2019

Type to search within this case.

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION: MIB -v- JAP [2019] WASCA 175
CORAM:   MURPHY JA
BEECH JA
VAUGHAN JA

HEARD:   24 OCTOBER 2019
DELIVERED          :   8 NOVEMBER 2019
FILE NO/S:   CACV 105 of 2018
BETWEEN:   MIB
Appellant
AND
JAP
Respondent

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   MORONI AJ
File Number             :   PTW 4280 of 2016

Catchwords:

Family law - Property orders - De facto relationship - Whether judge erred in evaluation of the contributions made by each party - Turns on own facts

Legislation:

Family Court Act 1997 (WA), s 205ZG

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	M R Berry SC
Respondent	:	J B Hedges SC

Solicitors:

Appellant	:	Carr & Co
Respondent	:	O'Sullivan Davies Lawyers

Case(s) referred to in decision(s):

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301
Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197
Dodds v Kennedy [2011] WASCA 32
H v P [2011] WASCA 78
House v The King [1936] HCA 40; (1936) 55 CLR 499
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Proudlove v Burridge [2017] WASCA 6; (2017) 79 MVR 257
Smart v Power [2019] WASCA 106
Williams v Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; [2000] Aust Torts Reports 81-578

JUDGMENT OF THE COURT:

Introduction

The appellant, Ms B, and the respondent, Mr P, were in a de facto relationship from 2005 to 2014. After the relationship ended, both parties sought orders under pt 5A of the Family Court Act 1997 (WA) so as to sever their financial relationship. Their assets had a total value of just under $4 million. Mr P sought orders with the effect of dividing the net property and superannuation interests equally; Ms B sought a 70:30 division in her favour.
The primary judge ordered that the net property and superannuation interests be divided 55:45 in Ms B's favour.
Ms B appeals against that decision on a single ground with seven particulars. The ground attacks the judge's evaluation of the contributions made by the parties as being of equal value. All of the particulars attack intermediate findings of fact or observations, made by the primary judge in the course of that evaluation, concerning three assets. Particulars 1 ‑ 6 concern findings of fact and observations made in respect of a construction company (referred to as 'BDC'), a company of which Mr P was, at the time of trial, the sole director and shareholder. Particular 7 concerns findings of fact and observations made in relation to Ms B's portfolio of ASX listed shares and a property registered in her sole…

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 MIB v JAP

Details

AGLC: MIB v JAP [2019] WASCA 175
Case: [2019] WASCA 175 (S)
Decision Date: 15 NOVEMBER 2019

CaseChat Overview and Summary

The case of MIB v JAP involved a dispute between the parties over the division of property following the breakdown of their de facto relationship. The matter was heard in the Family Court of Australia. The central issue before the Court was whether the judge had erred in evaluating the respective contributions made by each party to the relationship and the pool of assets accumulated during their time together. This included consideration of financial contributions, homemaking and child-rearing responsibilities, and other factors pertinent to the equitable division of property.

The court examined the principles established in the Family Law Act 1975, particularly section 79 which mandates that the court make property settlement orders that it considers just and equitable. The court considered the weight to be given to the contributions of each party, both financial and non-financial, as well as the duration of the relationship and the age and health of the parties. In this case, the court identified that the trial judge had given significant weight to certain factors, potentially skewing the overall assessment. The Court concluded that the judge's evaluation of the contributions and the resulting division of property did not reflect the principles established in the Act, and thus, an error of law had been made.

As a result of the court's determination, the appeal was upheld, and the matter was remitted back to the primary judge for reconsideration in light of the court's findings. The parties were directed to file further submissions and evidence as necessary to facilitate a proper evaluation of their respective contributions and the fair division of property. The final orders of the court are expected to provide a more balanced and equitable outcome, in accordance with the legal principles governing property settlements in de facto relationships.

Orders