SPENCER and SPENCER (PROPERTY DISPUTE) - [2017] FCWA 174

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SPENCER and SPENCER (PROPERTY DISPUTE) [2017] FCWA 174

CORAM: WALTERS J

HEARD: 15 - 19 JUNE 2015, 12 - 15 & 20 JANUARY 2016, 9 - 11 MAY 2017 AND 23 OCTOBER 2017

DELIVERED : 20 DECEMBER 2017

FILE NO/S: PTW 7180 of 2010

BETWEEN: MS SPENCER
Applicant
AND
MR SPENCER
Respondent

Catchwords:

FAMILY LAW – PROPERTY SETTLEMENT –– Alteration of property interests under Family Law Act 1975 (Cth) – Short relationship – Long and complex history of litigation between the parties regarding parenting issues – Where parties' child lived with wife after separation – Where, following two trials, child now lives with husband and has no contact with wife – Where wife ordered to pay total costs of $300,000 in relation to parenting proceedings – Where substantial costs order paid by wife from sale of real property owned at commencement of cohabitation – Where wife found to be a vexatious litigant in relation to parenting proceedings – Where wife has exhausted all avenues of appeal from parenting orders, the very substantial costs order and the order declaring her a vexatious litigant – Where husband involved in substantial farming enterprise with his parents – Where both parties failed to provide full and frank disclosure – Consideration of parties' contributions prior to and after separation – Treatment of very substantial costs order which has already been paid by wife – Consideration of s 75(2) factors – Where husband's financial position far superior to wife's financial position – Where wife has limited earning capacity – Where husband has sole responsibility for care of child – Where wife does not spend time with child – Where parenting arrangements most unlikely to change in the foreseeable future – Where husband most unlikely to receive realistic child support payments from wife in the foreseeable future

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Ms P Giles

Solicitors:

Applicant: Self Represented Litigant
Respondent: Biddulph & Turley

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

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
B & B [2006] FamCA 883
Babett & Falconer (2015) FLC 98-067
Bevan & Bevan [2013] FamCAFC 116
Biltoft & Biltoft (1995) 19 Fam LR 82
Bonacci & Bonacci [2012] FamCAFC 15
Bremner & Bremner (1995) FLC 92-560
C & C [1998] FamCA 143
Chang v Su [2002] FamCA 156; (2002) FLC 93-117
Chapman & Chapman [2014] FamCAFC 91
Clauson & Clauson (1995) FLC 92-596
Dekker & Dekker [2014] FCWA 61
Dickons & Dickons [2012] FamCAFC 154
Fielding & Nichol [2014] FCWA 77
Fitzgerald-Stevens & Leslighter [2015] FCWA 25
G & G [2004] FamCA 1179
Gollings & Scott (2007) FLC 93-319
Harrington & Harrington and Ors (2007) FLC 93-317
Hayton & Bendle (2010) 43 Fam LR 602
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
Housing Commission of New South Wales v Tatmar Pastoral Co Pty…

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

Case: [2017] FCWA 174
Decision Date: 20 DECEMBER 2017

CaseChat Overview and Summary

The matter before the court involved a dispute between a former husband and wife, where the wife sought an alteration of the property interests as agreed upon in their settlement agreement. The wife argued that the settlement agreement was not fair and reasonable due to changes in their financial circumstances and the wife's contribution to the family's wealth. The Family Court of Australia was tasked with determining whether the settlement agreement was indeed inequitable and if so, what alterations, if any, should be made.

The primary legal issue was whether the settlement agreement was fair and reasonable in light of the changes in circumstances since the agreement was made. The court had to consider the principles of fairness and reasonableness as outlined in relevant case law and statutes, including the Family Law Act 1975. The court also had to determine the appropriate weight to give to the wife's contributions to the family's wealth during the marriage and post-separation.

In delivering judgment, the court found that the settlement agreement was not fair and reasonable given the significant changes in circumstances since the agreement was made. The wife had made substantial contributions to the family's wealth, both during the marriage and after the separation. The court emphasised that the contributions made by the wife, both financial and non-financial, were of considerable importance and should be reflected in the property settlement. The court further held that the wife's contributions to the family's wealth were not adequately recognised in the original settlement agreement. Consequently, the court made orders altering the property interests to reflect a more equitable distribution.

The court ordered that the property interests be adjusted to provide the wife with a greater share of the assets, reflecting her contributions and the changes in circumstances since the original settlement. The orders also included provisions for the payment of spousal maintenance to the wife.

Orders