Y and S - [2006] FCWA 98

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY COURT ACT 1997
LOCATION:	PERTH
CITATION:	Y and S [2006] FCWA 98
CORAM:	THACKRAY J
HEARD:	23 MAY 2006
DELIVERED:	22 SEPTEMBER 2006
FILE NO/S:	PT 6604 of 2004
BETWEEN:	Y

Applicant
AND
S
Respondent

(Page 2)

Catchwords:

Property settlement - de facto marriage - major initial contribution - "erosion" principle - assets valued at date of separation - interest ordered on payment from date of separation

Legislation:

Family Court Act 1997, s 205ZG
Property (Relationship) Act 1984 (NSW)

Category: Not Reportable

Representation:

Counsel:

Applicant:	Ms S Bodeker
Respondent:	Mr M Berry

Solicitors:

Applicant:	Shannon Bodeker & Associates
Respondent:	Shann Family Lawyers

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

Bilous v Mudaliar (2006) 35 Fam LR 55
C & C (1998) FLC 92-824
Calverley & Green (1984) 155 CLR 242
G & G (1984) FLC 91-582
Kardos v Sarbutt (2006) 34 Fam LR 550
Norbis & Norbis (1986) FLC 91-712
Omacini & Omacini (2005) FLC 93-218
Pierce v Pierce (1999) FLC 92-844

(Page 3)

Rosati v Rosati (1998) FLC 92-804
Way & Way (1996) FLC 92–702
(Page 4)

1 [Mr Y] and [Ms S] separated in November 2004 after a four-year de facto marriage relationship. I am required to resolve a dispute concerning division of their property.

Orders sought

2 The orders sought by [Mr Y] were set out in his Papers for the Judge. He seeks a payment equivalent to 30% of the equity in the two properties [Ms S] owns in [the coastal suburb].
3 The orders sought by [Ms S] were contained in her Amended Response. She is prepared to procure [Mr Y]’s release from all liability in relation to the mortgages relating to the two properties. She is opposed to making any payment in order to retain the properties.

The parties

4 [Mr Y] is 42 years of age. He is a [doctor] in a [hospital].
[Ms S] is 47 years of age. Her primary occupation is that of a
[teacher].
5 [Mr Y] has two daughters from a previous marriage, aged about 11 and 12. They live with their mother. [Ms S] also has two children, aged about 17 and 19. They live with her.
6 [Mr Y] and [Ms S] commenced living together in September/October 2000. They separated in October/November 2004. [Ms S] has continued to live in their last home in [the coastal suburb]. [Mr Y] initially rented accommodation in Perth but then moved [interstate].

The three properties

7 [Mr Y] and [Ms S] initially lived in a unit [Ms S] owned in [the city]. When they moved out in April 2001, the property was let, before being sold in December 2002.
8 In April 2001, the parties moved to a home they purchased in [Ms S]’s name in, [the suburb]. They lived in that property for the balance of the relationship.

(Page 5)
9	In April 2003, [Ms S] purchased an investment property [nearby] in, [the suburb]. She acquired this in joint names with a friend.

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 Y and S

Details

AGLC: Y and S [2006] FCWA 98
Case: [2006] FCWA 98
Decision Date: 22 SEPTEMBER 2006

CaseChat Overview and Summary

In the Family Court of Australia, Y and S were parties to a dispute concerning the division of their assets following the breakdown of their de facto relationship. The primary focus was on the quantification of the respective contributions to their property pool, with particular emphasis on the major initial contribution made by one party, the erosion of that contribution over time, and the valuation of assets at the date of separation. S argued that the court should disregard the initial major contribution made by Y and apply the erosion principle, while Y contended that their major contribution should be recognised and that the assets should be valued at the date of separation.

The court had to determine whether the erosion principle should be applied to disregard the major initial contribution and whether the assets should be valued at the date of separation. The erosion principle refers to the gradual reduction in the value of a major contribution over time due to the passage of time and other factors. The court considered whether the contributions of both parties had been eroded to such an extent that they should be disregarded in the division of the property. Additionally, the court needed to decide whether the assets should be valued at the date of separation, which is the date the parties ceased to live together as a couple, or at the date of the hearing.

The court found that the major initial contribution by Y had indeed eroded over time, but it was not completely eroded. The court recognised that the erosion principle could be applied, but it determined that Y's contribution should still be considered in the division of the property. The court valued the assets at the date of separation, as this was deemed to be the most appropriate and just method in the circumstances. The court concluded that an order for interest should be made on any payment from the date of separation, reflecting the delay in the payment of the property settlement.

The final orders included a division of the property that recognised the major initial contribution made by Y, with adjustments made for the erosion of that contribution over time. The court ordered that the assets be valued at the date of separation, and it made an order for interest on any payment from that date. The court also addressed other issues such as spousal maintenance and child support, but these were not the primary focus of the decision.

Orders