FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farrant & Farrant [2024] FedCFamC2F 100
File number(s): LNC 500 of 2023 Judgment of: JUDGE TURNBULL Date of judgment: 2 February 2024 Catchwords: FAMILY LAW – SUMMARY DISMISSAL of s 79A Application – whether the Wife’s application has no reasonable prospects of success – where the parties child has significant special needs – whether the Wife can establish that the full extent of the child’s disability and needs were not known when the property order was made – whether there are exceptional circumstances that have arisen since the order was made that would lead to the child and/or the Wife to suffer hardship if the order is not varied Legislation: Family Law Act 1975 (Cth) ss 45(2) & 79A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bigg & Suzi [1998] FamCA 14; (1998) FLC 92-799
Carman & Carman [2017] FamCA 99
Christian & Donald [2008] FamCAFC 44
Coe v The Commonwealth [1979] HCA 68; (1979) 24 ALR 118
Curtain & Curtain [2022] FedCFamC1A 134
Fewster & Drake [2016] FamCAFC 214
Garden & Gavin (No. 2) [2010] FamCAFC 125
Lindon v Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251
Milavic & Banks [2016] FamCA 884
Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171
Ritter & Ritter and Anor [2020] FamCAFC 86; (2020) FLC 93-957
Simpson & Hamlin (1984) FLC 91-576
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Whitford and Whitford [1979] FamCA 3; (1979) FLC 90-612
Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1
Wood v Glaxo Australia Pty Ltd [1993] QCA 114; [1994] 2 Qd R 431
Division: Division 2 Family Law Number of paragraphs: 48 Date of last submission/s: 21 December 2023 Date of hearing: 21 December 2023 Place: Hobart – delivered in Parramatta Counsel for the Applicant: Mr Williams Solicitor for the Applicant: Glynn Williams Legal Counsel for the Respondent: Mr Verney Solicitor for the Respondent: Clarke & Gee Lawyers ORDERS
LNC 500 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FARRANT
Applicant
AND: MR FARRANT
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The interlocutory orders sought at paragraph 5(b) of the Respondent Husband’s Response filed 3 November 2023 are dismissed.
2.That the Applicant Wife’s Application in a Proceeding filed 10 October 2023 is dismissed.
3.That all and any question of costs are adjourned to the trial date.
4.The proceedings are listed for directions before Judge Turnbull at 9.30am 13 February 2024 with all parties granted leave to appear by MS Teams.
THE COURT NOTES THAT:
A.It is expected that when the matter is next mentioned, the Court will be informed as to:
(a)whether the Wife’s s79A application will be a discrete hearing;
(b)the documents to be filed by each party;
(c)the subpoenas that will be…
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CaseChat Overview and Summary
The court considered the Wife's argument that the child's significant special needs were not fully understood at the time of the original property settlement. The court also assessed whether there were exceptional circumstances that warranted a variation of the property order. Judge Turnbull found that the Wife had not provided sufficient evidence to establish that the full extent of the child’s disability and needs were unknown at the time of the original settlement. Additionally, the court was not convinced that exceptional circumstances had arisen since the original order that would justify a variation.
As a result, the court dismissed the Wife’s application in its entirety. The interlocutory orders sought by the Respondent were also dismissed, and all questions of costs were adjourned to the trial date. The proceedings were scheduled for further directions on 13 February 2024, with the matter to be referred to mediation.
Orders
Orders of the court
LNC 500 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS FARRANT
Applicant
AND:
MR FARRANT
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT ORDERS THAT:
1. The interlocutory orders sought at paragraph 5(b) of the Respondent Husband’s Response filed 3 November 2023 are dismissed.
2. That the Applicant Wife’s Application in a Proceeding filed 10 October 2023 is dismissed.
3. That all and any question of costs are adjourned to the trial date.
4. The proceedings are listed for directions before Judge Turnbull at 9.30am 13 February 2024 with all parties granted leave to appear by MS Teams.
THE COURT NOTES THAT:
A. It is expected that when the matter is next mentioned, the Court will be informed as to:
(a) whether the Wife’s s79A application will be a discrete hearing;
(b) the documents to be filed by each party;
(c) the subpoenas that will be issued;
(d) the witnesses to be called by each party; and
(e) all and any other information necessary to allow the Court to understand the matters in dispute and trial time required.
B. This matter will be referred to mediation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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