PILCH & PILCH - [2016] FamCA 740

FAMILY COURT OF AUSTRALIA

PILCH & PILCH

[2016] FamCA 740

FAMILY LAW – PROPERTY SETTLEMENT – Long marriage – issue as to contributions and the significance of an inheritance received by the husband – where the husband sought to minimise the wife’s contributions as homemaker and parent during the relationship – husband argues that his initial contributions and an inheritance justify a 74/26 adjustment in his favour – mathematical approach adopted by the husband – where the husband’s initial contributions comprise of two properties sold over forty years ago – no adjustment made with respect to the husband’s initial contributions – where the husband’s inheritance received at the approximate mid-point of a 42 year marriage – where some of the properties claimed as an inheritance were held by the husband prior to his mother’s death – where properties held by the husband were improved during the course of the marriage – adjustment made in the husband’s favour to account for the properties received from his mother or her estate –final property orders made for a 60/40 division in the husband’s favour.

FAMILY LAW – PROPERTY SETTLEMENT – Where the wife alleges she was subjected to family violence during the marriage and that there should be an adjustment in her favour – Kennon v Kennon (1997) FLC 92-757 considered – finding that the husband was financially controlling and verbally abused the wife – no evidence as to the effect of the husband’s behaviour upon the wife’s contributions – Kennon argument not made out.

Family Law Act 1975 (Cth)

Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545
Bremner & Bremner (1995) FLC 92-560
Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592
Clives & Clives [2008] FamCAFC 172; (2008) FLC 93-385
Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060
Garrett & Garrett (1984) FLC 91-539
Gould & Gould [2007] FamCA 609; (2007) FLC 93-333
Kennon v Kennon (1997) FLC 92-757
Norbis v Norbis (1986) 161 CLR 513
S & S [2003] FamCA 905
Sinclair & Sinclair [2012] FamCA 388
Stanford v Stanford (2012) 247 CLR 108
Watson & Ling [2013] FamCA 57

APPLICANT:

Ms Pilch

RESPONDENT:

Mr Pilch

FILE NUMBER:

MLC

1749

2013

DATE DELIVERED:

2 September 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

15 – 18 March 2016 & 15 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Weil

SOLICITOR FOR THE APPLICANT:

Beswick Foulkes Family Law

COUNSEL FOR THE RESPONDENT:

Mr Thompson

SOLICITOR FOR THE RESPONDENT:

Johnston Family Lawyers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pilch & Pilch 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 for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r…

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.

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Details

AGLC: PILCH & PILCH [2013] FamCA 57
Case: [2016] FamCA 740
Decision Date: 2 September 2016

CaseChat Overview and Summary

In *Pilch & Pilch*, the Family Court of Australia considered a property settlement dispute between a husband and wife following a long marriage of 42 years. The central disagreement revolved around the appropriate division of assets, with the husband seeking a significant adjustment in his favour, arguing that his initial contributions and a substantial inheritance should be given greater weight. The wife, conversely, sought to have her contributions as homemaker and parent recognised, and also raised allegations of family violence.

The court was required to determine the weight to be given to the husband's initial contributions and his inheritance, and whether these warranted a substantial departure from an equal division of the matrimonial assets. Furthermore, the court had to consider the wife's claim for an adjustment in her favour due to alleged family violence, and the applicability of the principles established in *Kennon v Kennon*.

Johns J found that the husband's initial contributions, comprising properties sold over forty years prior, did not warrant any specific adjustment. Regarding the inheritance, received approximately midway through the 42-year marriage, the court acknowledged that some of the properties were held by the husband before his mother's death and had been improved during the marriage. Nevertheless, an adjustment was made in the husband's favour to account for the properties received from his mother or her estate. The court also considered the wife's allegations of family violence, finding that the husband had engaged in financial control and verbal abuse. However, as there was no evidence presented regarding the impact of this behaviour on the wife's contributions, the *Kennon* argument was not made out. Ultimately, the court made final property orders for a 60/40 division in the husband's favour.

Orders