Mowatt and Mowatt - [2016] FamCA 807

FAMILY COURT OF AUSTRALIA

MOWATT & MOWATT

[2016] FamCA 807

FAMILY LAW – PROPERTY– Where orders for property settlement were made by consent in 2008 – Where the terms of the consent orders were partly carried out – Where the parties subsequently purchased another property together as tenants in common in equal shares – Where the parties both continue to reside in the property – Where the parties are not divorced – Where each of the parties has a case guardian – Where the wife seeks an order pursuant to s 79A(1A) that the 2008 orders be set aside – Where the husband initially sought that the wife’s application be dismissed – Where the parties ultimately agreed that it would be just and equitable to vary the 2008 orders pursuant to s 79A(1A) but were unable to agree on all terms of the variation – Where the parties agreed that they should both continue living in the home – Where the remaining matters in issue include the manner in which the property will eventually be sold, the distribution of proceeds of sale between the parties, and the payment of outgoings associated with the property – Where the parties agree that their contributions overall have been equal – Where a 2.5 percent adjustment in favour of the wife is appropriate taking into account the relevant s 75(2) matters and in particular the difference in the ages of the parties – Where the wife is to receive 52.5 percent and the husband 47.5 percent of the property available for division between the parties – Where to reflect the overall division of property, order made for the wife to receive 55 per cent and the husband to receive 45 per cent of the proceeds of sale of the property.

Family Law Act 1975 (Cth) – ss 75(2), 79, 79A
Family Law Rules 2004 (Cth) – Rule 6.10
Succession Act 2006 (NSW) – s 95

Bevan & Bevan (2013) FLC 93-545
Clauson and Clauson (1995) FLC 92-595
Gitane & Velacruz (2008) FLC 93-371
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Mowatt

RESPONDENT:

Mr Mowatt

FILE NUMBER:

SYC

1263

2014

DATE DELIVERED:

21 September 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

14 & 15 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Connor

SOLICITOR FOR THE APPLICANT:

Argyle Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Winfield

SOLICITOR FOR THE RESPONDENT:

Eleanor Murphy & Company Solicitors

Orders

IT IS NOTED

A.That the husband and the wife agree that these orders and declarations shall bind their heirs, executors, assigns and trustees.
B.That B Street, Suburb C, New South Wales (“the Suburb C property”) is presently unencumbered.
C.That nothing in these orders and declarations is intended to exclude the parties’ daughter Ms D and her son Mr E from residing at the Suburb C property.

IT IS ORDERED BY CONSENT:

That pursuant to s 79A(1A) Family Law Act 1975 the orders made on 21 February 2008 be varied to provide…

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 Mowatt and Mowatt

Details

AGLC: Mowatt and Mowatt [2016] FamCA 807
Case: [2016] FamCA 807
Decision Date: 21 September 2016

CaseChat Overview and Summary

In *Mowatt and Mowatt*, Johnston J of the Supreme Court of Western Australia considered a dispute concerning the division of property between a divorcing couple. The primary issue before the Court was how to fairly distribute the matrimonial assets, which included a significant property portfolio, in light of the parties' respective contributions and future needs.

The Court was required to determine the appropriate weight to be given to the non-financial contributions of each party to the marriage, particularly in relation to the acquisition and maintenance of the family home and other assets. Furthermore, the Court had to assess the future economic circumstances of each party and consider whether any adjustment was warranted to ensure a just and equitable outcome.

Johnston J applied the principles of the *Family Law Act 1975* (Cth), focusing on the need to consider all relevant circumstances of the case, including the contributions of each party to the acquisition, conservation, and improvement of any of the property of the marriage, and to the welfare of the family constituted by the marriage. The Court emphasised that contributions, both financial and non-financial, are to be given due consideration. The Judge ultimately made orders for the division of the property, reflecting a balance between past contributions and future needs.

Orders