Farmer & Farmer - [2007] FamCA 158

FAMILY COURT OF AUSTRALIA

FARMER & FARMER

[2007] FamCA 158

APPEAL – From decision of Federal Magistrate – Property – Parties agreed that contributions should be assessed as to 70% in the wife’s favour – On appeal husband challenged the adjustment for s75(2) factors, claiming they should have favoured him rather than the wife – Wife had a higher income earning capacity than the husband and would retain a greater proportion of the assets – Equal shared parenting – Federal Magistrate had concluded that since the husband had consented to the children attending private schools but the wife alone bore the cost and was paying child support, a 5% adjustment in her favour was warranted – Held: it could not be said that the children’s attending private schools was a necessary expense nor had the parties jointly agreed upon it – The wife’s obligation to pay child support could not reduce the husband’s property entitlements as this would amount to an effective reduction his child support entitlement – The s75(2) factors favoured the husband and the proper outcome was 66.67/33.33 in the wife’s favour.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Burke v Burke (1993) FLC 92‑356
Gronow v Gronow (1979) 144 CLR 513
House v. The King (1936) 55 CLR 499
Mee v Ferguson (1986) FLC 91‑716

APPELLANT:

MR FARMER

RESPONDENT:

MS FARMER

FILE NUMBER:

LNM

1279

2005

APPEAL NUMBER:

2006

DATE DELIVERED:

21 February 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

KAY J

HEARING DATE:

21 February 2007

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

10 October 2006

LOWER COURT MNC:

[2006] FMCAfam 524

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Tresize

SOLICITOR FOR THE APPELLANT:

Dobson Mitchell & Allport

COUNSEL FOR THE RESPONDENT:

Mr McGuire

SOLICITOR FOR THE RESPONDENT:

Temple-Smith Partners

Orders

That the appeal be allowed.
That order 1(a) of the orders made by Roberts FM on 10 October 2006 be varied by substituting the sum of "$105,235" for the sum "$152,000" therein appearing.
That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

The court notes that, should the wife refund the difference in the amounts within a reasonable time, the appellant will not seek any interest…

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: Farmer & Farmer [2007] FamCA 158
Case: [2007] FamCA 158
Decision Date: 21 February 2007

CaseChat Overview and Summary

The appeal concerned a property dispute between Farmer and Farmer, heard by Kay J of the Federal Court of Australia. The parties had previously agreed to a division of their property, with contributions assessed as 70% in the wife's favour. The husband appealed this decision, specifically challenging the adjustment made for the factors outlined in section 75(2) of the *Family Law Act 1975* (Cth), arguing that these factors should have favoured him, not the wife.

The central legal issue before the court was whether the Federal Magistrate had erred in applying the section 75(2) factors. Specifically, the court had to determine if the wife's higher income earning capacity and the fact she would retain a greater proportion of the assets warranted a further adjustment in her favour, as found by the Federal Magistrate. The Federal Magistrate had concluded that a 5% adjustment in the wife's favour was justified because the husband had consented to the children attending private schools, a cost borne solely by the wife who was also paying child support.

Kay J reasoned that the children's attendance at private schools could not be considered a necessary expense, nor had the parties jointly agreed upon it. Furthermore, the court held that the wife's obligation to pay child support could not operate to reduce the husband's property entitlements, as this would effectively diminish his child support entitlement. Consequently, Kay J found that the section 75(2) factors favoured the husband. The appeal was allowed, and the property division was adjusted to be 66.67% in the wife's favour and 33.33% in the husband's favour.

Orders