SOAMES and SOAMES - [2020] FCWA 31

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: SOAMES and SOAMES [2020] FCWA 31
CORAM: TYSON J
HEARD: 3 and 4 FEBRUARY 2020
DELIVERED : 9 MARCH 2020
FILE NO/S: PTW 2883 of 2016
BETWEEN: MS SOAMES
Applicant
AND
MR SOAMES
Respondent

Catchwords:

FAMILY LAW – PROPERTY – Long marriage – Two adult children – Assessment of contributions – Where the husband made greater initial contributions and superior financial contributions - Where the husband received an inheritance, proceeds of sale of a property and redundancy post separation – Where the husband has expended significant funds post-separation - Failure of the husband to provide full and frank disclosure – Assessment of section 75(2) factors – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Beckerling
Respondent	:	Mr van der Merwe

Solicitors:

Applicant	:	Efficient Family Law
Respondent	:	O'Sullivan Davies

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

Bevan & Bevan (2013) FLC 93-545
Chang & Su (2002) FLC 93-117
Dickons & Dickons (2012) 50 Fam LR 244
Fotia & Welsh [2013] FCWA 112
Grier v Malphas (2016) 55 Fam LR 107
Holland & Holland (2017) FLC 93-798
In the marriage of Aleksovski (1996) FLC 92-705
Kannis & Kannis (2003) FLC 93-135
Kowaliw & Kowaliw (1981) FLC 91-092
Mallet v Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
Reichstein & Reichstein [2006] FamCA 1422
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Trevi & Trevi (2018) FLC 93-858
Waters & Jurek (1995) FLC 92-635
Watson & Ling (2013) FLC 93-527

TYSON J:

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Soames & Soames has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1[Ms Soames] [(“the wife”)] and [Mr Soames] [(“the husband”)] were married for 21 years. They separated in late 2013 under the same roof, before physically separating in early 2014. They have two children, both of whom are now adults. The husband is now 67 years old and the wife is 51 years old.
2Since separation, the parties have been unable to agree on orders by way of alteration of property interests. The proceedings have been complicated by disagreement over the available property, allegations of non-disclosure and disputes regarding contributions, amongst other issues. The husband seeks the parties’ property be divided 75% in his favour, while the wife seeks an equal division.
3These proceedings are governed by the Family Law Act 1975 (Cth). There is no assumption that the wife and the husband should have their property divided or that either has the right to property that is fixed. While each party wants the Court to do so, that is not enough.
4To decide these matters,…

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 SOAMES and SOAMES

Details

AGLC: SOAMES and SOAMES [2020] FCWA 31
Case: [2020] FCWA 31
Decision Date: 9 MARCH 2020

CaseChat Overview and Summary

The appeal, heard by the Family Court of Australia, involved a dispute between a husband and wife concerning the division of their property following their separation. The couple had been married for over 30 years and had two adult children. The husband had made larger initial contributions to the marriage, including purchasing the family home and making significant financial contributions throughout. The wife had contributed to the family by raising their children and managing the household. The husband received an inheritance, the proceeds from the sale of a property, and redundancy payments after the separation. The husband had also expended significant funds post-separation.

The legal issues that the court had to decide included the assessment of the contributions made by each party to the marriage and the appropriate division of the property in light of these contributions. The court also had to consider the factors outlined in section 75(2) of the Family Law Act, which include the contributions made by each party, the benefit to the other party of those contributions, and any other factors that the court considers relevant.

The court found that the husband's initial contributions were significant, but the wife's contributions to the family were also valuable, particularly in raising their children. The court also found that the husband's failure to provide full and frank disclosure of his financial affairs was a relevant factor in the assessment of the contributions. In light of these findings, the court determined that an equal division of the property was appropriate. The court emphasised that each case turns on its own facts and that the division of property in this case was not a precedent for other cases.

The final orders of the court included an equal division of the property, with specific directions for the sale of the family home and the payment of certain debts. The court also made orders for the husband to pay the wife's legal costs. The case serves as a reminder of the importance of full and frank disclosure in family law proceedings and the need for courts to consider each case on its own facts.

Orders