Asquith & Asquith - [2021] FedCFamC2F 506

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Asquith & Asquith [2021] FedCFamC2F 506

File number(s): DGC 1052 of 2020

Judgment of: JUDGE BURCHARDT

Date of judgment: 10 December 2021

Catchwords:
FAMILY LAW – PARENTING – dispute about best interests of children aged 12 and 9 – mother seeking nine/five arrangement in her favour and father seeking equal time – children possibly influenced by mother but nonetheless expressing satisfaction with current nine/five regime – family report recommending nine/five – orders made as sought by the mother.

PROPERTY – significant disputes about various cars – whether father disposing of valuable car at an undervalue – both parties seeking to manipulate aspects of the dispute to maximise their outcome – Court assessing contribution 52.5 to 47.5 per cent in favour of father as a result of greater initial contribution to the matrimonial home – future needs assessed 15 per cent in the favour of the mother – overall resolution 62.5 to 37.5 per cent in favour of the mother just and equitable

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Chang and Su [2002] FamCA 156

Goode v Goode [2006] FamCA 1346

Jones v Dunkel [1959] HCA 8

Kennon & Kennon (1997) FLC 92-757

Kowaliw & Kowaliw (1981) FLC 91-092

Pierce v Pierce [1999] FLC 92-844

Walters & Walters [2007] FamCA 324

Division: Division 2 Family Law

Number of paragraphs: 125

Date of last submission/s: 22 October 2021

Date of hearing: 21 & 22 October 2021

Place: Dandenong

Counsel for the Applicant: Mr Moisidis

Solicitor for the Applicant: Waters Lawyers

Advocate for the Respondent: Mr Ng

Solicitor for the Respondent: Pentana Stanton Lawyers
ORDERS

DGC 1052 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ASQUITH

Applicant

AND:
MR ASQUITH

Respondent

ORDER MADE BY:

JUDGE BURCHARDT

DATE OF ORDER:

10 DECEMBER 2021

THE COURT ORDERS THAT:
Property
1.Within 60 days of this Order, the husband pay to the wife the sum of $237,045 (“the payment”).
2.Contemporaneously with the payment the wife do all things necessary to transfer to the husband all of her right, title and interest in the property situate at B Street, Suburb C in the State of Victoria (“the real property”).
3.In the event the whole of the payment has not been made by the due date then the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of sale be applied:
(a)Firstly to pay all costs, commissions and expenses of the sale;
(b)Secondly so much of the payment as it then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly from the due date to the wife;
(c)Subject to (d) below, thirdly the balance to the husband;
(d)In the event that the real property is not sold for a net figure of $600,000, the wife is to receive 62.5 per cent of the amount over $600,000, or 62.5 per cent less of the amount by which…

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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Details

AGLC: Asquith & Asquith [2021] FedCFamC2F 506
Case: [2021] FedCFamC2F 506
Decision Date

CaseChat Overview and Summary

This matter involved a property and parenting dispute between the parties. The wife sought that the two children live in a nine/five arrangement in her favour while the husband sought equal time. The court found that the children were well used to the nine/five arrangement, it reflected the mother’s role as the primary carer and attachment, it was what the children themselves wanted, and it was what was recommended by the experienced family counsellor who wrote the family report. The court also found that the husband’s contributions to the matrimonial home and his initial contribution had a real impact upon the parties’ capacity to own the property, and the wife’s contributions, while not to be set at nought, were lesser than the contribution made by the husband. The court found that the wife’s future needs should be assessed at 15 per cent in her favour. In all the circumstances, the court found that an outcome that gave the wife 62.5 per cent of the property pool and the husband 37.5 per cent was just and equitable in all the circumstances.

Orders