WHATLEY and WHATLEY - [2023] FCWA 110

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WHATLEY and WHATLEY [2023] FCWA 110
CORAM: O'BRIEN J
HEARD: 11, 12 & 13 APRIL 2023
DELIVERED : 7 JUNE 2023
FILE NO/S: 2227 of 2014
BETWEEN: MR WHATLEY
Applicant
AND
MRS WHATLEY
Respondent

Catchwords:

PROPERTY - long marriage - where parties separated finally some 20 years before trial - where parties agree to a "three pool" approach given their individual acquisition of property post separation - where the wife's contributions over the whole period to trial exceeded those of the husband - where those contributions were made more onerous by the effect of family violence - turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms R Milton
Respondent	:	Mr A Spashett

Solicitors:

Applicant	:	Baily Family Law
Respondent	:	CMS Legal

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

Anson & Meek (2017) FLC 93-816
Benson & Drury (2020) FLC 93-998
Bolger & Headon (2014) FLC 93-575
Browne v Dunn (1893) 6 R 67
Bulleen v Bulleen (2010) 43 Fam LR 489
Calder & Calder (2016) FLC 93-691
Calvin & McTier (2017) FLC 93-785
Dickons v Dickons (2012) 50 Fam LR 244
Fields & Smith (2015) FLC 93-638
G v H (1994) 181 CLR 387
Holland & Holland (2017) FLC 93-798
Jones v Dunkel and Anor (1959) 101 CLR 298
Kennon v Kennon (1997) FLC 92-757
Kowaliw and Kowaliw (1981) FLC 91-092
Loncar & Loncar (2021) FLC 94-054
Lovine & Connor and Anor (2012) FLC 93-515
Marsh & Marsh (2014) FLC 93-576
Norbis v Norbis (1986) 161 CLR 513
Steinbrenner & Steinbrenner [2008] FamCAFC 193

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 Whatley and Whatley has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
1The financial proceedings between [Mr Whatley] ("the husband") and [Mrs Whatley] ("the wife") were commenced by the husband in September 2015 and, after numerous false starts, proceeded to trial on 11 April 2023.
2The parties, who are in their late 70's, both seek orders for the alteration of their property interests. The most significant of those interests is a jointly owned property at [Suburb A] ("the home"). The wife has continued to live in the home for the nearly 20 years since the parties separated.
3The husband seeks orders for the sale of the home, with the wife to be responsible for any necessary repairs and the associated costs to prepare it for sale. In the event that he incurs…

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 WHATLEY and WHATLEY

Details

AGLC: WHATLEY and WHATLEY [2023] FCWA 110
Case: [2023] FCWA 110
Decision Date: 7 JUNE 2023

CaseChat Overview and Summary

The matter of Whatley and Whatley involved a dispute between a husband and wife concerning the division of their property following a long marriage, which had ended in separation approximately two decades prior to the trial. The couple agreed to approach the division of their assets using a "three pool" method, recognising the distinct periods of property acquisition before and after their separation. The wife argued that her contributions to the family over the entire duration, particularly during the period when she was subjected to family violence, had exceeded those of the husband. The court was tasked with determining the appropriate division of the couple's property, considering the contributions made by each party and the impact of the wife's experiences with family violence.

The primary legal issue before the court was to decide how to fairly divide the property between the parties, considering the contributions made by each during the marriage and the subsequent period of separation. The court had to balance the wife's assertion that her contributions, which were more burdensome due to the family violence she endured, outweighed those of the husband. The court also needed to determine whether the "three pool" approach was appropriate for this case and how to account for the differing contributions of each party, particularly in light of the wife's experience of family violence.

The court concluded that the "three pool" approach was suitable for this case, given the distinct periods of property acquisition. It found that the wife's contributions to the family, particularly during the period of family violence, were more significant than those of the husband. The court acknowledged the wife's difficult circumstances and the impact they had on her ability to contribute to the family's financial well-being. Ultimately, the court determined that the wife's contributions, both financial and otherwise, warranted a greater share of the property. The court ordered a division of the property that reflected the wife's larger contributions and the impact of family violence on her ability to contribute.

The final orders of the court included a detailed division of the property between the husband and wife, recognising the wife's greater contributions over the entire period of the marriage and separation. The court also made specific provisions for the distribution of the family home and other significant assets, ensuring that the outcome reflected the unique circumstances of the case and the respective contributions of each party. The court's decision underscored the importance of considering the individual contributions of each party, as well as the broader context in which those contributions were made, in determining the fair division of property in long-term marriages.

Orders