FAMILY LAW - APPEAL – Property settlement – Contributions – 10 year relationship – Husband sought a greater acknowledgment of his contribution to the asset pool – Husband’s contribution of a property and farming business conducted thereat substantially increased in value since commencement of cohabitation – Whilst it was valid to look at the worth of contribution as at the date of the trial rather than it’s initial value, consideration of other contributions, a lack of evidence attributing increase in value to forces other than the mutual effort of the parties, and the inclusion of the wife’s assets in the asset pool that had also increased in value meant that the weight given to the husband’s contributions at 57.5% to the wife’s 42.5% was not outside an acceptable range.
Family Law Act 1975 (Cth) Property (Relationships) Act (1984) NSW
The appellant pay the respondent’s costs of the appeal as agreed or failing agreement as assessed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Williams v Williams.
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT
Appeal Number: EA 34 of 2006 File Number: NCF 680 of 2004
MR W
Appellant
And
MS W
Respondent
REASONS FOR JUDGMENT
This is the husband’s appeal against orders made by Watts J in property proceedings on 24 February 2006. The effect of the orders was to divide an asset pool worth approximately $3.7 million as to 57½ per cent to the husband and 42½ to the wife.
In his Notice of Appeal the husband seeks orders that would increase his share of the asset pool by a further 10 per cent or $367,950. In his oral submissions Mr Page SC on behalf…
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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AGLC
Williams & Williams [2007] FamCA 313
Case
[2007] FamCA 313
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between Williams & Williams, heard by Kay, Coleman, and Stevenson JJ. The case involved an appeal against a property settlement order.
The central legal issue before the court was whether the trial judge had erred in their assessment of the parties' respective contributions and the overall justice and equity of the property division. This required the court to consider the application of the relevant legislative provisions governing property settlement proceedings, particularly those relating to financial and non-financial contributions, the welfare of the family, and the effect of proposed orders on earning capacity. The court also had to consider the broad discretion afforded by the legislation to make orders that are just and equitable in all the circumstances.
The court's reasoning focused on the principles established in property settlement jurisprudence, drawing a comparison to the provisions of section 79 of the *Family Law Act 1975* (Cth). The court noted that while the legislation was not identical, the underlying principles of assessing contributions and ensuring a just and equitable outcome were similar. The court considered the specific facts of the case, including the parties' financial and non-financial contributions, and the matters referred to in subsection 75(2) of the Act, such as any fact or circumstance that the justice of the case required to be taken into account. The court found that the trial judge had properly applied these principles in reaching their decision.
The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal.
Orders
Orders of the court
1.
The appeal is dismissed.
2.
The appellant pay the respondent’s costs of the appeal as agreed or failing agreement as assessed.
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
The legislation is similar to but not identical with s 79 of the Family Law Act 1975 (Cth) (“the Act”) that (in so far as is relevant) provides as follows:Alteration of property interests(1) In property settlement proceedings, the court may make such order as it considers appropriate:(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; ……(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.…(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and(e)the matters referred to in subsection 75(2) so far as they are relevant; and…75 (2) The matters to be so taken into account are:…(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account… In Kardos v Sarbutt (2006) 34 Fam LR 550 the parties had lived together for three years. There were no children of their relationship. At the commencement of the relationship the appellant owned real estate worth $290,000 which at the time of trial was worth $683,500. The respondent owned real estate at the commencement of the relationship worth $241,000 which at the time of the hearing was worth $405,400. During the course of the relationship the appellant had earned $190,000 while the respondent had earned $110,000. At the trial each received a return of their initial capital and otherwise shared equally in the combined capital growth, subject to a minor allowance for the fact that one of the parties had provided the use of her house as the parties’ joint residence.