Farmer & Farmer

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.