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Wither and Wither & Anor

Wither and Wither & Anor

Case [2024] FCWA 177 23 August 2024

Jurisdiction

Alteration of Property Rights

Non-Disclosure

Financial Contributions

Assessment of s 75(2) Factors

No judgment structure available for this case.

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WITHER and WITHER & ANOR [2024] FCWA 177
CORAM: TYSON J
HEARD: [REDACTED]
DELIVERED : 23 AUGUST 2024
FILE NO/S: 4906 of 2019
BETWEEN: MS WITHER
Applicant
AND
MR WITHER
First Respondent
AND
MRS WITHER SENIOR
Second Respondent

Catchwords:

PROCEDURE - Application pursuant to s 106B to set aside transactions involving the husband's mother - Where the husband's mother is the Second Respondent - Where the husband sought leave to rely upon an affidavit from his mother - Where the husband sought his mother be excused from attending trial, on the basis of her health - Where the Court declined the husband's application and required the husband's mother to be available for cross-examination, on terms - Where the husband failed to make his mother available for cross-examination and sought leave to rely upon her affidavit - Where the application was declined - Case turns on its own facts

PROPERTY - Application pursuant to s 106B - Where the wife seeks to set aside two Acknowledgements signed by the husband and two Demands signed by the husband's mother - Where the husband's mother filed a submitting notice - Where the Court is satisfied the Acknowledgements and Demands formed part of a series of transactions - Where the Court is satisfied the Acknowledgements and Demands are instruments made by or on behalf of the husband - Where the Court is satisfied that the transactions were entered into with the intention to defeat an anticipated order - In any event the Court is satisfied that irrespective of intention, the transactions were likely to defeat an anticipated order - Where the Court exercises discretion to set aside the transactions - Case turns on its own facts

PROPERTY - Where it is found to be just and equitable to make orders altering the existing legal and equitable interests of the parties - Allegations of non–disclosure and waste - Where the husband's financial contributions are substantial and warrant recognition - Where the husband's contributions exceed those of the wife - Assessment of s 75(2) factors - Where the parties have three children - Where two children live in a shared care arrangement and the eldest child continues to live with the wife - Where the husband pays child support as assessed, private school fees, and other costs - Where the husband's income and income earning capacity dwarf the wife's income and income earning capacity - Where the Court is satisfied that the s 75(2) factors support an adjustment in favour of the wife - Case turns on its own facts

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Senior Counsel A
First Respondent	:	Counsel C
Second Respondent	:	Did not participate

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant

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

[2020] FCWAM 22
Af Petersens and Af Petersens (1981)…

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 Wither and Wither & Anor

Details

AGLC: Wither and Wither & Anor [2024] FCWA 177
Case: [2024] FCWA 177
Decision Date: 23 AUGUST 2024

CaseChat Overview and Summary

The case of Wither and Wither & Anor involves a dispute concerning the setting aside of transactions under s 106B, as well as the alteration of the legal and equitable interests of the parties in property matters. The husband sought to rely on an affidavit from his mother, who is the Second Respondent, and requested that she be excused from attending trial due to health issues. The Court declined the husband's application and required the mother to be available for cross-examination, on certain terms. Despite this, the husband failed to make his mother available for cross-examination and sought leave to rely on her affidavit instead. The Court declined this application as well.

The legal issues before the Court included whether the Acknowledgements and Demands were part of a series of transactions, whether they were made by or on behalf of the husband, and whether they were entered into with the intention to defeat an anticipated order. The Court was also required to consider whether the transactions were likely to defeat an anticipated order, irrespective of intention. In addition, the Court had to determine whether it was just and equitable to alter the existing legal and equitable interests of the parties, taking into account the financial contributions of the husband and wife, as well as the best interests of their three children.

The Court found that the Acknowledgements and Demands formed part of a series of transactions, and that they were instruments made by or on behalf of the husband. The Court was satisfied that the transactions were entered into with the intention to defeat an anticipated order, and in any event, that they were likely to defeat such an order. As a result, the Court exercised its discretion to set aside the transactions. The Court also found that it was just and equitable to make orders altering the existing legal and equitable interests of the parties, taking into account the substantial financial contributions of the husband and the best interests of the parties' three children. The Court considered the factors set out in s 75(2) and determined that they supported an adjustment in favour of the wife.

The Court made orders that the Acknowledgements and Demands be set aside, and that the existing legal and equitable interests of the parties be altered in favour of the wife. The Court also made orders relating to the care and support of the parties' three children, including the payment of child support and private school fees by the husband. The case was found to turn on its own facts, and the Court emphasised that each case must be considered on its own merits.

Orders