W v M - [2023] WASCA 93

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   W -v- M [2023] WASCA 93
CORAM:   MITCHELL JA
BEECH JA
HALL JA

HEARD:   23 MAY 2023
DELIVERED          :   8 JUNE 2023
FILE NO/S:   CACV 72 of 2022
BETWEEN:   W
Appellant
AND
M
Respondent

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   SUTHERLAND CJ
Citation: M and W [2022] FCWA 111
File Number            :   6046 of 2020

Catchwords:

Family law - De facto relationships - Property settlement proceedings between de facto partners - Whether primary judge made any material error

Legislation:

Family Court Act 1997 (WA), s 205ZG

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	T Kean
Respondent	:	T Farmer

Solicitors:

Appellant	:	Kean Legal Barristers And Solicitors
Respondent	:	Terrace Law

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

Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662
Dodds v Kennedy [2011] WASCA 32
Hall v Hall [2016] HCA 23; (2016) 257 CLR 490
In the Marriage of Crapp (No 2) (1979) 5 Fam LR 47
In the Marriage of KD & PA Reynolds (1984) 10 Fam LR 388
In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762
M and W [2022] FCWA 111
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Mallet v Mallet (1984) 156 CLR 605
Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44
Norbis v Norbis (1986) 161 CLR 513

JUDGMENT OF THE COURT:

Introduction

The appellant challenges the decision of the primary judge[1] in property settlement proceedings commenced by the respondent, formerly his de facto partner, against him.
[1] M and W [2022] FCWA 111 (primary decision).
At trial, the parties were agreed as to their assets and their value. The main issues concerned who should retain the house in which they had lived for most of their relationship and what adjusting payments should be made consequent upon the decision as to retention of the house.
In summary, the primary judge decided that (i) contributions should be assessed as 60:40 in favour of the respondent, (ii) there should be a further adjustment of 5% in her favour, having regard to the disparity in their income‑earning capacities and to the respondent's significant ongoing parenting responsibilities for their child, and (iii) ownership of the property where they had lived should go to the respondent.
By his seven grounds of appeal, the appellant challenges various steps in the primary judge's reasoning and conclusions.
For the reasons that follow, the appellant has fallen well short of establishing any appellable error. We would dismiss the appeal.

Background

The following background is drawn from the unchallenged findings of the primary judge.
Both the appellant and the respondent were born in 1977. They met in 2010, after the appellant moved to Western Australia to work in the mining…

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 W v M

Details

AGLC: W v M [2023] WASCA 93
Case: [2023] WASCA 93
Decision Date

CaseChat Overview and Summary

This appeal concerns property settlement proceedings between de facto partners, W and M, before the Family Court of Western Australia. The Court of Appeal for Western Australia was asked to decide whether the primary judge made any material error in the property settlement proceedings between the parties. The Court found that the appellant had fallen well short of establishing any appellable error. The appeal was dismissed.

The Court of Appeal considered the grounds of appeal raised by the appellant. The appellant argued that the primary judge erred in law by failing to take into account the financial resources available to the respondent in the form of financial assistance from her parents. The Court found that the primary judge did not err in failing to take into account a matter to which her attention was not drawn and upon which the appellant did not rely. The evidence and the judge's findings did not establish that the respondent had a reasonable expectation of financial support beyond the support involved in assisting the respondent to finance the acquisition of the Property. The Court also found that the primary judge did not err in making findings in the course of concluding that the respondent should retain the Property. The Court held that the primary judge's approach and the considerations to which she referred were cogent and made good sense. No appellable error in her Honour's approach had been demonstrated.

Orders