Mabb & Mabb and Anor [2020] Fam CAFC 18 (31 January 2020)

The case of Mabb & Mabb and Anor [2020] FamCAFC 18 (31 January 2020) is a Full Court decision discussing elements of contribution.

This is a case that resulted in property alteration orders including both the husband, the wife and the husband’s mother.

The parties lived with each other for approximately 15 years.  The husband had four children from previous relationships who lived with the parties from time-to-time. The parties themselves have two children.

The significant facts are these.

The husband’s parents subdivided land into several blocks.

In August 2001, during the relationship and within two years of their marriage, the husband’s parents transferred 60 acres of the property to the parties jointly.

The wife’s evidence, which the primary judge accepted, was that “the property was given to the parties on the basis that the husband’s parents would eventually build a house on the property and the husband and wife would look after them if they needed it”.

In 2003, the husband’s parents indeed built a house on that property where they lived until July 2017.  The husband’s father had moved to supported care before July 2017.  The husband’s parents and the wife have maintained the good relationship they have always enjoyed.

The parties had a processing business and over a period of time, it largely devolved to the wife to operate it.

In 2016, “the crop could not be processed because the husband complained wrongly to the government department that the processing business had been moved and the government department prohibited the commencement of production”.

Later in that same year, the crop could not be harvested because of a fire on the property which meant there was no power to the property and the crop could not be chilled after picking.

At paragraph 22:

“Her Honour found that during the marriage the parties’ contributions were equal. However she found that since separation the wife had made the overwhelmingly greater contributions. Her Honour found that these contributions were made more difficult by the husband’s actions such as complaining to the local government department which stopped production in 2016 and freezing the bank accounts.”

The wife’s contributions were assessed at 60% and there was a further s.75(2) adjustment of 10%.

The husband’s case at trial was that the property had been given to him by his parents long before the relationship with the wife commenced.  This was found to be inconsistent with the husband’s parents’ actions as they subdivided the land before transferring it to the parties.

There was discussion of the case Gosper and Gosper  [1987] FamCA 43.  Fogarty J said at 76,167-76,168:

“Where there has been a gift or advance by a relative to one or both of the parties to the marriage the first step is to determine the ownership of that benefaction. Confusion often arises at this point because, particularly with gifts of money or in kind, the evidence about it is confused and imprecise and the actual intention of the donor (the critical issue) may have been ill-defined. However, where the evidence enables the Court to determine that it is a gift to one or other or both of the parties, that is an important finding.”

The husband contended on appeal that the wife had to prove the intention of his parents. The Full Court did not agree. They said:

“Each party bore an evidentiary onus to establish the facts to support their respective contentions.”

The trial judge had accepted the evidence that the husband’s parents transferred the land on the basis that the husband and wife would support them if needed.  This expressed intention was followed through with actual action and the wife continued to support the husband’s parents post-separation.

Paragraph 43 of the appeal and paragraph 74 of the trial judgment, Her Honour concluded:

“I accept the intention of [the husband’s] parents was the property be gifted to both [the husband] and [the wife], and they both receive the benefit of that gift, and both also had the obligation to support the parents if they needed. [The wife] had a good relationship with [the husband’s] parents, which relationship continued after separation, and also after [the husband] vacated the property. Therefore I am satisfied the gift was to both parties.”

The important takeaway from this case which perhaps should be obvious, but clearly is not always obvious, is that each party bears the onus to establish the facts of their own case.

That may be a disclosure issue and perhaps they will contend the other party controls the disclosure.  If they believe as part of their case there is a disclosure issue, then they have to prove the disclosure issue, not just the original fact.

Each party has the responsibility to run their own case.