Wardon and Wardon and Anor - [2020] FCWA 111

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WARDON and WARDON & ANOR [2020] FCWA 111
CORAM: DUNCANSON J
HEARD: 24, 25, 26, 29, 30, 31 JULY, 1 AUGUST 2019, 26, 27, 28 FEBRUARY, 3, 4, 5, 6, 9, 10 and 11 MARCH 2020
DELIVERED : 17 JULY 2020
FILE NO/S: PTW 5173 of 2016
BETWEEN: MR WARDON
Applicant
AND
MS WARDON
First Respondent
AND
MS WARDON SNR
Second Respondent

Catchwords:

PROPERTY - identification of the existing legal and equitable interests of the parties in their property - where funds provided to the husband by the second respondent are not taken into account as liabilities of the husband - where a declaration sought by the second respondent that funds which are the subject of a deed of loan are due and owing is refused - where a company is found to be the alter ego of the husband - where it is just and equitable to make a property settlement order - where the husband made the greater contributions - where the financial benefit which the husband derives from the second respondent is a financial resource - adjustment in favour of the wife for section 75(2) factors - where consideration is given to a just and equitable outcome and orders to give effect thereto

SPOUSAL MAINTENANCE - where it is found the wife is unable to support herself adequately - spousal maintenance ordered in terms similar to those proposed by the husband

CHILD SUPPORT - where the grounds for departure are established - where it appropriate to depart from the administrative assessment of child support - where orders are made by consent

Legislation:

Family Law Act 1975 (Cth) s 72, s 74, s 75, s 79, s 80, s 90XT, Division 12A
Child Support (Assessment) Act 1989 (Cth) s, 116, s 117, s 124(1)
Family Law (Superannuation) Regulations 2001 (Cth) Part 6

Category: Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
First Respondent	:	Mr Rynne / Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	Self-Represented Litigant
First Respondent	:	Direct Brief
Second Respondent	:	Self-Represented Litigant

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

Biltoft and Biltoft (1995) FLC 92-614
De Winter & De Winter (1979) 4 Fam LR 583
Grace v Grace (1998) FLC 92-792
Hall v Hall(2016) 257 CLR 490
Pratt & Pratt [2012] FamCAFC 81
Rodgers and Rodgers (No. 2) (2016) FLC 93-712
Stanford v Stanford (2012) 247 CLR 108

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 Wardon and Wardon has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1 [Mr Wardon], the husband and [Ms Wardon], the wife are unable to agree about the division of their property. The proceedings between them concern both parenting and financial matters. Also a party…

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: [2020] FCWA 111
Decision Date: 17 JULY 2020

CaseChat Overview and Summary

The case of Wardon and Wardon and Anor dealt with the identification of legal and equitable interests in property held by the parties, alongside various financial orders concerning spousal maintenance and child support. The proceedings were heard in the Family Court of Australia. The primary legal issues before the court involved determining the extent of the husband's financial contributions to the property, the status of funds provided by the second respondent, and the justness of making a property settlement order. Additionally, the court had to consider the wife's ability to support herself and whether to depart from the administrative assessment of child support.

The court found that the funds provided by the second respondent were not to be considered as liabilities of the husband. It also dismissed the second respondent's request for a declaration that certain funds were due and owing. The court determined that a company was the alter ego of the husband and that it was just and equitable to make a property settlement order, taking into account the husband's greater contributions and the financial benefit he derived from the second respondent. The court also found that the wife was unable to support herself adequately and ordered spousal maintenance in terms similar to those proposed by the husband. Regarding child support, the court found that the grounds for departure from the administrative assessment were established and made orders by consent.

The court ordered that child support for the children would be $250 per week per child, payable from 11 March 2020, with variations by the child support inflation factor from 1 July each year. The husband was also required to provide certain non-periodic child support. The court dismissed several applications and ordered the return or destruction of documents produced by named persons pursuant to subpoena. Finally, the court specified the procedure for collecting exhibits tendered into evidence.

Orders

Orders of the court

THE PROPOSED CHILD SUPPORT ORDERS

373 Subject to hearing from the parties I propose to make the following orders.

By consent:

1 Pursuant to section 117 of the Child Support (Assessment) Act 1989 (Cth) there be a departure from the administrative assessment of child support payable by the husband to the wife in respect of the children [Child A] born [in] 2005 and [Child B] born [in] 2007 ("the children") such that from 11 March 2020 the rate of child support for the children shall be $250 per week per child, such sum to be paid on a weekly basis, the first payment to be made within 7 days of 11 March 2020, until the date of a terminating event.

2 The periodic child support referred to in order 1 shall be varied on 1 July in each year (commencing 1 July 2021) by increasing the amount payable by the child support inflation factor.

3 Pursuant to section 124 of the Assessment Act, from 11 March 2020 the husband provide child support for the children otherwise than in the form of periodic amounts paid to the wife as and when they fall due as follows:

(a) all school fees, costs of extracurricular and sporting activities, uniforms and school supplies for the children; and

(b) all health costs for the children.

4 Pursuant to section 125(2) of the Assessment Act, the child support payable by the husband under orders 1 and 2 will not be reduced by the child support ordered to be provided pursuant to order 3.

PROCEDURAL ORDERS

1 The following applications be and are hereby dismissed:

(a) the form 1A response filed by the second respondent on 10 January 2018;

(b) the application in a case filed by the husband on 1 June 2018;

(c) the application in a case filed by the husband on 14 November 2018, and response filed by the wife on 26 November 2018;

(d) the application in a case filed by the wife on 28 November 2018;

(e) the application in a case filed by the husband on 27 November 2018;

(f) the application in a case filed by the wife on 2 October 2019 and response filed by the husband on 13 November 2019; and

(g) the application in a case filed by the husband on 24 February 2020.

2 The proceedings insofar as they relate to the financial matters be otherwise dismissed.

3 All documents produced by named persons pursuant to subpoena in relation to financial matters be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

4 In relation to material tendered as an exhibit into evidence in these proceedings:

(a) all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;

(b) all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and

(c) in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.

5 In the event of an appeal being lodged prior to the expiration period of 42 days, orders 3 and 4 above do not apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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