Whiton & Dagne

The appeal before the court involved a dispute regarding property settlement following the dissolution of a de facto relationship. The wife appealed against the final property orders, which had favoured the husband by providing for a 75 per cent/25 per cent apportionment. The relationship began in 1998 and ended in 2016, with multiple periods of separation due to domestic violence perpetrated by the husband. The wife was the primary carer for the two children of the relationship.

The legal issues before the court included whether the trial judge erred in law by discriminating between the worth of the wife's contributions as a homemaker and parent in the de facto relationship, compared to what their worth would have been had the parties been married. The court also had to determine if the trial judge erred by giving weight to the husband's financial assistance to the wife for debts incurred during periods of separation caused by domestic violence. Additionally, the court had to consider whether the trial judge failed to take account of, or give weight to, the consequences for the wife of such domestic violence, and whether the trial judge's assessment of the s90SF(3) matters was incorrect, inadequate, and unsupported by adequate reasons.

The court found that the trial judge did indeed err in law, and the appeal was allowed. The orders made by the Federal Circuit Court of Australia on 2 November 2018 were set aside, and the matter was remitted for rehearing in the Federal Circuit Court of Australia by a different judge. The court also ordered the husband to pay the wife's costs of the appeal, fixed in the amount of $13,773.17, due to the husband's significant contribution to the trial judge's errors.