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PARTIES SEEK ALTERATION TO ORDERS REGARDING THEIR PROPERTY INTERESTS

This case involves competing applications for the alteration of property interests.

Facts:

Each party sought orders for an alteration of property interests to end their financial relations. Ms. Metzer (the wife) sought a final adjustment as to 75% in her favor and 25% to the husband, an adjustment of 5% for family violence (Kennon & Kennon), and a further 10% adjustment for the s.75 (2) factors relating to her physical health and capacity. On the other hand, Mr. Metzer (the husband) sought 55% to the wife and 45% to him. He denied the wife's allegations of family violence. And he submitted that there should be no adjustment for the s.75(2) factors.  

Issues:

Should the Court grant the application for orders to alter the property interests of the parties?

Held:

The wife sought a final adjustment as to 75% in her favor and 25% to the husband. The husband sought 55% to the wife and 45% to him. The Court found that the wife's contributions were greater than the husband's and held that wife’s contributions were 58% and the husband’s 42%.

The wife also sought an adjustment of 5% for family violence pursuant to the principles originally articulated in Kennon & Kennon.[1]  It provided that:

‘Put shortly; our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, to put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s.79.’

The husband denied the wife’s allegations. The wife bore the onus of proof and was not able to discharge that onus. Accordingly, there is no adjustment for that factor.

The wife sought a further 10% adjustment for the s.75(2) factors relating to her physical health and capacity and its likely impact on her future earnings, her ongoing primary care for the child and the husband’s currently higher earnings. The husband submitted that there should be no adjustment either way. Considering the evidence that there is a diminution of capacity and that the wife will be primarily responsible for the child of the marriage till he reaches his majority, the Court found that there should be an adjustment of 2% to the wife.

 

In the case, the Court denied the wife’s application for adjustment of 5% for family violence pursuant to the Kennon & Kennon case.   A party who alleges must prove.  The wife failed to prove her allegation of family violence against her husband.  Hence, the Court did not grant the 5% adjustment for family violence the wife sought.

 

 

[1] Kennon & Kennon [1997] FamCA 27; (1997) 139 FLR 118 (‘the Kennon claim’).

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