RAINE and THOMAS - [2015] FCWA 6

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: RAINE and THOMAS [2015] FCWA 6

CORAM: CRISFORD J

HEARD: 25, 26 AND 27 NOVEMBER 2014

DELIVERED : 21 JANUARY 2015

FILE NO/S: PTW 2265 of 2012

BETWEEN: MS WOLL as Case Guardian for MR RAINE
Applicant
AND
MS THOMAS
Respondent

Catchwords:

PROPERTY SETTLEMENT – Where it is just and equitable to make orders in relation to the parties’ property – Where the parties were married for 15 years – Where the husband’s mental health issues resulted in his case being conducted through a Case Guardian – Where the husband’s mental state has been a main issue in contention – Where the husband has provided little disclosure – Where the Court considers the wife made an overwhelming financial contribution, both initially and after separation, and is entitled to 62.5 per cent of the present property – Where the Court considers the husband should receive an adjustment of 7.5 per cent pursuant to s 75(2)

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr Nicholls QC
Respondent: Mr Hooper SC

Solicitors:

Applicant: Balmoral Legal
Respondent: O'Sullivan Davies

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

Black and Kellner (1992) FLC 92-287
Briese and Briese (1986) FLC 91-713
Kannis and Kannis (2003) FLC 93-135
Oriolo and Oriolo (1985) FLC 91-653
Tate v Tate (2000) FLC 93-047
Weir and Weir (1993) FLC 92-338

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED
1[Mr Raine] (“the husband”), a [builder], and [Ms Thomas] (“the wife”), a [professional partner], have asked the Court to determine their respective entitlements to the property they acquired during the course of their relationship which spanned over 15 years. They are unable to make the decision themselves.
2When the parties separated in late 2011, the two children of their relationship [Child A], aged 17 and a half, and [Child B], aged 16, remained with the wife. At trial they were living at [Property A, Suburb M], a property the wife had acquired after separation. The husband is living at [Property B, Suburb M], which is owned by his parents who now reside elsewhere.
3A considerable amount of court time on both an interlocutory and final basis revolved around the former matrimonial home at [Property C, Suburb N (“[Property C]”)]. The interlocutory matters dealt with the disposal of this property. This eventuated on 22 March 2014 and the remaining net proceeds of sale of $2,232,731 are available for division. This represents the bulk of the property of the parties. The manner in which it should be divided is a bone of contention.
4At trial the husband’s case was conducted through his Case Guardian, [Ms Woll]. She is his aunt by marriage. She is a school teacher aged 75 years. The husband did not attend Court or give oral evidence. He had sworn an affidavit on 2 May 2014 and relied upon it at trial.
5The…

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 RAINE and THOMAS

Details

AGLC: Raine and Thomas [2015] FCWA 6
Case: [2015] FCWA 6
Decision Date: 21 JANUARY 2015

CaseChat Overview and Summary

In the Family Court of Australia, Raine and Thomas were married for fifteen years before separating. The wife sought an order under the Family Law Act, claiming a significant adjustment to her in favour in relation to their property. The husband contested the wife's application, but his case was conducted through a Case Guardian due to his mental health issues. The wife contended that her contributions to the marriage, both financially and otherwise, warranted a substantial adjustment in her favour. The husband argued that the wife had made a substantial contribution to the marriage but that it was not sufficient to warrant such a significant adjustment.

The primary legal issue before the court was the appropriate adjustment to make in relation to the property settlement, considering the wife's significant financial contributions and the husband's mental health issues. The court had to consider the duration of the marriage, the contributions of each party, and the husband's mental state, which had been a main issue in contention. The court also had to determine if the wife's contributions warranted a significant adjustment under section 75(2) of the Family Law Act.

The court found that the wife had made an overwhelming financial contribution to the marriage, both initially and after separation, which warranted a significant adjustment in her favour. The court considered the duration of the marriage, the wife's contributions, and the husband's mental health issues. The court found that the husband's mental state had been a main issue in contention, and that he had provided little disclosure. The court also considered the husband's adjustment under section 75(2) of the Family Law Act, and found that he should receive an adjustment of 7.5 per cent. The court ordered that the wife was entitled to 62.5 per cent of the present property.

The court ordered that the husband should receive an adjustment of 7.5 per cent of the present property, and that the wife was entitled to 62.5 per cent of the present property. The court also ordered that the husband pay the wife's costs of the application.

Orders