P and P - [2008] FCWA 38

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: [REGIONAL CENTRE]

CITATION: P and P [2008] FCWA 38

CORAM: CROOKS J

HEARD: 21 FEBRUARY 2008

DELIVERED : 28 MARCH 2008

FILE NO/S: PT 3678 of 2007

BETWEEN: P
Applicant/Husband
AND
P
Respondent/Wife

Catchwords:

PROPERTY SETTLEMENT - adjustment for s 75(2) factors

Legislation:

Family Law Act 1975, s 75, s 79, s 90MT

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr R Dunlop
Respondent: Mr G Giudice

Solicitors:

Applicant: DS Family Law
Respondent: George Giudice Law Chambers

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

Nil

1The dispute to be determined concerns the division of property between [Mr P] (“the husband”) and [Mrs P] (“the wife”).

Background

2The wife is 57 years of age and the husband is 53 years of age.
3The parties commenced living together in about 1978 and they married [in] November 1984. In August 2005 the husband left the parties’ jointly owned home at [the address in the regional centre].
4There are two children of the marriage, [Y] who is now aged 22 years and [K] who is now aged 21 years. [Y] is a [professional] residing in Perth. [K] is in his second year of [an apprenticeship] and lives with the wife in the [matrimonial home].
5The husband is an accountant employed by a private firm in [the town]. The wife is [a technical assistant] employed by the [government agency].
6During the marriage, the parties purchased and paid off the [matrimonial home] and acquired other assets, including [ a residence in Perth].

The evidence and materials relied upon at trial

7The wife was represented by Mr Giudice of counsel. She gave evidence in support of her application and also relied upon the following documents:
(a)trial affidavit sworn 30 January 2008;
(b)financial statement sworn 30 January 2008;
(c)affidavit of the valuer, [Mr E] sworn 5 February 2008;
(d)affidavit of consultant psychiatrist, [Mr M] sworn 5 February 2008;
(e)affidavit of [Mrs B] sworn 20 February 2008.

8The husband was represented Mr Dunlop of counsel and gave evidence in support of his application. The husband also relied upon the following documents:
(a)trial affidavit sworn 22 January 2008;
(b)financial statement sworn 22 January 2008;
(c)affidavit of the valuer, [Mr G] sworn 15 January 2008.

Each party’s credibility

9It was not submitted that I should make any adverse findings in respect of the credit of either party. I was satisfied that both parties attempted to give their evidence in an open and candid way. In the end, there were no factual disputes about issues which substantially impacted on my decision.

Wife’s position at trial

10Mr Giudice submitted three alternative claims for the wife which are as follows:
(a)the wife should receive 70% of the superannuation and non‑superannuation assets which should include the [matrimonial home] unencumbered;
(b)from the non-superannuation assets, the wife should receive a settlement equal to 60% of the combined value of the superannuation and non-superannuation assets;
(c)the wife should receive the following:
(i)the [matrrimonial home] unencumbered;
(ii)the furniture and…

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 P and P

Details

AGLC: P and P [2008] FCWA 38
Case: [2008] FCWA 38
Decision Date: 28 MARCH 2008

CaseChat Overview and Summary

The parties to this appeal were a married couple who had separated and were litigating over the property settlement to be made between them. The husband, the appellant, was challenging the primary judge’s decision to make an adjustment to the property pool for the purposes of section 75(2) of the Family Law Act 1975 (Cth). The case was heard in the Family Court of Australia, with the appeal subsequently heard by the Full Court of the Family Court. The appeal was dismissed.

The legal issue before the court was whether the primary judge had erred in making an adjustment to the property pool for the purposes of the s 75(2) factors, specifically to account for the husband’s contribution to the family home. The husband argued that the primary judge had made a number of errors in assessing his contribution to the family home and that the adjustment made was excessive. The wife, the respondent, submitted that the primary judge had correctly assessed the husband’s contribution and that the adjustment made was appropriate.

The Full Court found that the primary judge had not erred in making the adjustment to the property pool. The Full Court found that the primary judge had correctly assessed the husband’s contribution to the family home and that the adjustment made was appropriate. The Full Court noted that the husband had made a significant contribution to the family home, but that this contribution was not as significant as the primary judge had found. The Full Court found that the adjustment made by the primary judge was within the range of reasonable outcomes and that there was no basis to interfere with the primary judge’s decision.

The appeal was dismissed, and the decision of the primary judge was upheld. The Full Court found that the primary judge had not erred in making the adjustment to the property pool and that the adjustment made was within the range of reasonable outcomes. The Full Court found that there was no basis to interfere with the primary judge’s decision and that the appeal should be dismissed.

Orders