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Farrant & Farrant

Farrant & Farrant

Case [2024] FedCFamC2F 100 2 February 2024

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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…

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 Farrant & Farrant

Details

AGLC: Farrant & Farrant [2024] FedCFamC2F 100
Case: [2024] FedCFamC2F 100
Decision Date: 2 February 2024

CaseChat Overview and Summary

In the case of Farrant & Farrant, the Applicant, Ms Farrant, sought an adjustment to an existing property settlement agreement. The matter was heard by Judge Turnbull in the Federal Circuit and Family Court of Australia (Division 2). The Respondent, Mr Farrant, filed a response seeking summary dismissal of the application, arguing that the Wife's application had no reasonable prospects of success. The central issue before the court was whether the Wife could demonstrate that the full extent of their child’s special needs was not known at the time the property order was made, and whether exceptional circumstances had arisen since that time that would cause hardship if the order were not varied.

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;

(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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Citations

AGLC Citation

Farrant & Farrant [2024] FedCFamC2F 100

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 17 of 17 shown

Curtain & Curtain
[2022] FedCFamC1A 134 Para 2

…The Full Court confirms the approach to summary dismissal applications in Curtain & Curtain [2022] FedCFamC1A 134: 15.In Ritter & Ritter and Anor [2020] FamCAFC 86; (2020) FLC 93-957, an appeal from a summary dismissal of an application pursuant to s 79A of the Act, to which the primary judge referred in her reasons for…
Ritter & Ritter
[2020] FamCAFC 86 Para 2

…The Full Court confirms the approach to summary dismissal applications in Curtain & Curtain [2022] FedCFamC1A 134: 15.In Ritter & Ritter and Anor [2020] FamCAFC 86; (2020) FLC 93-957, an appeal from a summary dismissal of an application pursuant to s 79A of the Act, to which the primary judge referred in her reasons…
CARMAN & CARMAN
[2017] FamCA 99 Para 9

…In Carman & Carman [2017] FamCA 99, Loughnan J concludes that ‘circumstances of an exceptional nature’ did exist where a child’s health deteriorated following the making of the property order: Albeit that at the time of the orders, B suffered some ill-health, on the unchallenged evidence of the mother, EDS and it’…
Fewster & Drake
[2016] FamCAFC 214 Para 8

…to some extent financially, is a material change relating to his care welfare and development”. I note however that in Fewster & Drake [2016] FamCAFC 214 the Full Court noted at paragraph 48 that the test required to establish “material change” is a lower threshold than which applies to circumstances of an “exceptio…
Milavic and Banks (No 2)
[2016] FamCA 884 Para 8

…Whether a child’s medical condition can amount to ‘circumstances of an exceptional nature’, is considered in Milavic & Banks [2016] FamCA 884. There the Court deals with an application to set aside a financial agreement pursuant to s 90UM of the Act and considers whether there is a “material change in circumstances…
Garden & Gavin (No 2)
[2010] FamCAFC 125 Para 4

…In Garden & Gavin (No. 2) [2010] FamCAFC 125, the Full Court confirms the approach to be taken regarding s79A(1)(d): It is clear that three elements must be satisfied before an order can be made setting aside property orders pursuant to s 79A(1)(d). First, there must be circumstances that have arisen since the making…
Christian & Donald
[2008] FamCAFC 44 Para 5

…The Full Court in Christian & Donald [2008] FamCAFC 44 considers the meaning of ‘circumstances of an exceptional nature’: The husband had to establish “circumstances of an exceptional nature” for his case pursuant to s 79A(1)(d) to succeed. Her Honour needed to be satisfied, as a matter of law, that he had done so.…
Lindon v Commonwealth of Australia
[1996] HCATrans 165 Para 2

…17.The primary judge at [53] also correctly referred to and cited from the judgment of Kirby J in Lindon v Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251 at 255–256, where his Honour set out the approach to be taken in applications for summary relief, namely: 1.It is a serious matter to deprive a person of acc…
Munnings v Australian Government Solicitor
[1994] HCA 12 Para 2

…ighest” unless the respondent’s version is inherently incredible or unreliable (see Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171; Bigg & Suzi [1998] FamCA 14; (1998) FLC 92-799; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 608). ... 17.The primary judge at [53] also co…
Webster v Lampard
[1993] HCA 57 Para 2

…v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171; Bigg & Suzi [1998] FamCA 14; (1998) FLC 92-799; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 608). ... 17.The primary judge at [53] also correctly referred to and cited from the judgment of Kirby J in Lindon v Commonwealth (No…
Wickstead v Browne [No 2]
[1993] NSWCA 289 Para 2

…k is insufficient to justify its summary dismissal (see Coe v The Commonwealth [1979] HCA 68; (1979) 24 ALR 118; Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1). 16. Further, the plurality said: 66.The determination of the issue must only take into account the material on which the respondent seeks to make o…
Wood v Glaxo Australia Pty Ltd
[1993] QCA 114 Para 2

…evoted to the determination of claims which have legal merit. (Footnotes omitted) (emphasis added) … 19.In Wood v Glaxo Australia Pty Ltd [1993] QCA 114; [1994] 2 Qd R 431, an appeal against a refusal to order an extension of the period of limitation within which an action might be instituted, Macrossan CJ releva…
Coe v Commonwealth of Australia
[1979] HCA 68 Para 2

…plurality of the Full Court said: 48.... That a case is said to be weak is insufficient to justify its summary dismissal (see Coe v The Commonwealth [1979] HCA 68; (1979) 24 ALR 118; Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1). 16. Further, the plurality said: 66.The determination of the issue must…
[1979] FAMCA 3
[1979] FAMCA 3 Para 6

…As to ‘hardship’, the Court in Whitford and Whitford [1979] FamCA 3; (1979) FLC 90-612, states that the term ‘hardship’ is ‘akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment” and means “something more burdensome than ‘any appreciable detriment.’[32] [32]…
Munnings v Australian Government Solicitor
[1994] HCA 65 Para 2

…case “at its highest” unless the respondent’s version is inherently incredible or unreliable (see Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171; Bigg & Suzi [1998] FamCA 14; (1998) FLC 92-799; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 608). ... 17.The primary j…
Lindon v Commonwealth (No 2)
[1996] HCA 14 Para 2

…8 at 608). ... 17.The primary judge at [53] also correctly referred to and cited from the judgment of Kirby J in Lindon v Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251 at 255–256, where his Honour set out the approach to be taken in applications for summary relief, namely: 1.It is a serious matter to dep…
Bigg v Suzi
[1998] FAMCA 14 Para 2

…is inherently incredible or unreliable (see Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171; Bigg & Suzi [1998] FamCA 14; (1998) FLC 92-799; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 608). ... 17.The primary judge at [53] also correctly referred to and cited from t…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
45(2) 2 mentions

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

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