DENNELL & GARRON - [2018] FCCA 3548

FEDERAL CIRCUIT COURT OF AUSTRALIA

DENNELL & GARRON

[2018] FCCA 3548

Catchwords:

FAMILY LAW – Interim parenting and property proceedings – wife seeks order to enable relocation of child aged 7 from Adelaide to Sydney pending final hearing – husband asserts he is currently impecunious and without employment and reliant on his father for financial support which is about to be withdrawn – wife currently homemaker and without access to paid employment – wife seeks spousal maintenance and interim property settlement to fund her litigation and current living expenses – nature of an interim hearing – is it just and equitable to make interim property order – best interests – other matters to be considered – assessment of complexity of proceedings – matter transferred to Family Court.

Legislation:

Family Law Act 1975 (Cth), ss.4(1), 60B, 60CA, 60CC, 60DA(4), 61DA, 65DAA, 72, 74(1), 75(2), 79, 80
Federal Circuit Court Rules 2001 (Cth), r.24.03

Cases cited:

Mazorski v Albright (2007) 37 FamLR 518

B v B: Family Law Reform Act 1995 (1997) FLC 92-755

Russell & Russell & Anor [2009] FamCA 28

Mansfield & Mansfield [2017] FCCA 13

Mansfield & Mansfield (No 3) [2018] FCCA 970

Strahan v Strahan (2010) 42 Fam LR 203

Harris & Harris (1993) FLC 92-378

In the Marriage of DJM and JLM (1998) 23 Fam LR 396

Applicant:

MS DENNELL

Respondent:

MR GARRON

File Number:

ADC 2552 of 2018

Judgment of:

Judge Brown

Hearing date:

26 November 2018

Date of Last Submission:

26 November 2018

Delivered at:

Adelaide

Delivered on:

5 December2018

REPRESENTATION

Counsel for the Applicant:

Mr McGinn

Solicitors for the Applicant:

Andersons Solicitors

Counsel for the Respondent:

Ms Pyke QC

Solicitors for the Respondent:

Martin Robinson Solicitors

ORDERS

The parties take all necessary steps to commission a Family Assessment Report by Ms A at the joint cost of each party.
By way of interim property settlement the proceeds of sale of the Property A property be disbursed as follows:
(a)The sum of $50,000.00 to the husband;
(b)The sum of $50,000.00 to the wife;
(c)A further sum of $25,000.00 to the wife on account of her legal fees and related costs;
(d)The balance remaining to be placed in an interest bearing account in the joint names of the parties pending the resolution of these proceedings.
The parties jointly instruct [Real Estate Agent] to value the wife’s property situated at Property B in the state of New South Wales at their joint expense no later than 28 February 2019.
In the event the parties are unable to agree on the value of their former matrimonial home located at Property C in the state of South Australia they are directed to jointly instruct a valuer, the identity of whom is to be agreed between them and failing agreement as appointed by the Court to value the property at their joint expense with the valuation to be completed no later than 28 February 2019.
The parties jointly instruct [Real Estate Agent] to value each of the various items of…

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 DENNELL & GARRON

Details

AGLC: Dennell and Garron [2018] FCCA 3548
Case: [2018] FCCA 3548
Decision Date: 5 December 2018

CaseChat Overview and Summary

In interim parenting and property proceedings before Judge Brown, the wife sought an order permitting the relocation of their seven-year-old child from Adelaide to Sydney pending a final hearing. The husband contended he was impecunious and reliant on his father's financial support, which was about to cease. The wife, a homemaker without immediate access to paid employment, sought spousal maintenance and an interim property settlement to fund her litigation and living expenses.

The court was required to determine whether it was just and equitable to make an interim property order, considering the best interests of the child and other relevant matters. The assessment of the complexity of the proceedings was also a factor in the court's decision-making process.

Judge Brown reasoned that an interim property settlement was necessary to enable the wife to meet her litigation costs and living expenses. The court ordered that the proceeds of sale of a specified property be disbursed, with $50,000 to the husband, $50,000 to the wife, and a further $25,000 to the wife on account of her legal fees. The remaining balance was to be held in an interest-bearing account jointly held by the parties. The court also directed valuations of various properties and personalty, with costs to be jointly borne. Parenting orders were varied to allow the child to spend time with the father during specific school holidays, with an undertaking regarding alcohol consumption discharged. The husband was ordered to continue paying the child's school fees and extramural activities.

Ultimately, the proceedings were transferred to the Family Court of Australia for further directions.

Orders

Orders of the court

The parties take all necessary steps to commission a Family Assessment Report by Ms A at the joint cost of each party.

By way of interim property settlement the proceeds of sale of the Property A property be disbursed as follows:

(a) The sum of $50,000.00 to the husband;

(b) The sum of $50,000.00 to the wife;

(d) The balance remaining to be placed in an interest bearing account in the joint names of the parties pending the resolution of these proceedings.

The parties jointly instruct [Real Estate Agent] to value the wife’s property situated at Property B in the state of New South Wales at their joint expense no later than 28 February 2019.

In the event the parties are unable to agree on the value of their former matrimonial home located at Property C in the state of South Australia they are directed to jointly instruct a valuer, the identity of whom is to be agreed between them and failing agreement as appointed by the Court to value the property at their joint expense with the valuation to be completed no later than 28 February 2019.

The parties jointly instruct [Real Estate Agent] to value each of the various items of personalty, furniture and effects in each of their respective possession and to this end each party is directed to cooperate with all reasonable requests and directions of the nominee of [Real Estate Agent] to ensure such valuations are completed no later than 28 February 2019 with the cost of such valuation to be jointly borne by each of them.

The parties jointly instruct [Valuer] to value the wife’s engagement ring no later than 28 February 2019 with the cost of such valuation to be jointly borne by each of them.

In the event the wife wishes to photocopy any documents disclosed by the husband she shall do so at her own expense unless such documents can be supplied to the wife in digital form.

Until further or other order:

Orders 2.1 & 2.2 of the orders of 6 August 2018 continue and in addition thereto, the child [X] spend time with the father in the school holidays from 16 December 2018 to 26 December 2018 and 10 January 2019 to 17 January 2019 but the undertaking in respect of this period regarding the father’s consumption of alcohol is discharged.

The husband continue to pay [X]’s school fees and all other of his extramural activities which the husband has hitherto paid.

10.

The proceedings be transferred to the Family Court of Australia and be listed for further directions at a date and time to be determined by a Registrar of that Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.