FISCHER & FISCHER - [2014] FCCA 1088

FEDERAL CIRCUIT COURT OF AUSTRALIA

FISCHER & FISCHER

[2014] FCCA 1088

Catchwords:

FAMILY LAW – Property – Husband’s substantial initial contributions and inherited farming properties – weight to be applied to these contributions – whether a one pool or two pool approach should be adopted – what relevant s.75(2) factors apply and what adjustment if any should be assessed – how member benefits in the self-managed superannuation fund can be effectively “split”.

CHILD SUPPORT – Application by Mother for departure – leave required to allow departure outside of the 18 month period required in s.98S(3)(b) – leave refused – whether special circumstances has been established to depart – whether a ground of departure has been established for each assessment period – application dismissed – further application for child support in a form other than periodic payment – application dismissed.

Legislation:

Child Support (Assessment) Act 1989; s.98S(3)(b)
Family Law Act 1975; ss.75(2); 79

C & C [2005] FamCA 429; (2005) FLC 93-220; (2005) 33 Fam LR 414
Farmer & Bramley [2000] FLC 93-060
Garwin & Garwin [2013] FamCAFC 210 at [26]
Gyselman (1992) FLC 92-279
Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Hides & Hatton (1997) FLC 92-759
Stanford & Stanford [2012] HCA 52

Applicant:

MR FISCHER

Respondent:

MS FISCHER

File Number:

SYC 5367 of 2011

Judgment of:

Judge Baumann

Hearing dates:

16 & 17 December 2013

Date of Last Submission:

24 January 2014

Delivered at:

Brisbane

Delivered on:

6 June 2014

REPRESENTATION

Counsel for the Applicant:

Mr Millar

Solicitors for the Applicant:

Dobinson Davey Clifford

Counsel for the Respondent:

Mr Batey

Solicitors for the Respondent:

Farrar Gesini Dunn Family & Collaborative Law

ORDERS

This matter be adjourned to 1:00pm on 19 June 2014 in the Federal Circuit Court of Australia at Brisbane.

IT IS NOTED that publication of this judgment under the pseudonym Fischer & Fischer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

SYC 5367 of 2011

MR FISCHER

Applicant

And

MS FISCHER

Respondent

REASONS FOR JUDGMENT

Introduction

The parties in this matter separated after a relationship of nearly fourteen years that bore three children are unable to agree on how to divide a pool of assets that comprises both property and superannuation. The Husband has been a farmer all his life and brought into the relationship and inherited during the course of it, substantial farming properties.
Although other issues arise, the major issue is what weight should be applied to the more significant financial contributions by the Husband and how those contributions should be considered with the other financial and non-financial contributions of the parties.
Furthermore, the Wife seeks departure from child support assessments. All these issues are the subject of the reasons that follow.

Competing property proposals

The Applicant Husband’s Case Outline filed 12 December 2013 set out a proposed minute of order, which is annexed to these reasons and marked Appendix One.
The Respondent Wife’s Case…

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 FISCHER & FISCHER

Details

AGLC: FISCHER & FISCHER [2014] FCCA 1088
Case: [2014] FCCA 1088
Decision Date: 6 June 2014

CaseChat Overview and Summary

In the Federal Circuit Court of Australia at Brisbane, Judge Baumann presided over proceedings involving Mr and Mrs Fischer concerning a property settlement. The dispute encompassed the division of marital assets, including significant initial contributions by the husband and inherited farming properties, and the appropriate weight to be afforded to these contributions. The court was also required to consider whether a "one pool" or "two pool" approach to asset division was appropriate, and to assess the relevance and impact of various factors under section 75(2) of the *Family Law Act 1975* (Cth) on any adjustment to be made. Furthermore, the court needed to determine how member benefits within a self-managed superannuation fund could be effectively divided.

In addition to the property settlement, the proceedings also addressed applications relating to child support. The mother sought leave to depart from the standard 18-month period for making such applications, as stipulated by section 98S(3)(b) of the *Child Support (Registration and Collection) Act 1988* (Cth). This required the court to determine whether special circumstances existed to justify such a departure and whether any grounds for departure had been established for each relevant assessment period. A further application by the mother for child support in a form other than periodic payments was also before the court.

The court's reasoning and the legal principles applied to the child support applications are not detailed in the provided text, beyond the fact that leave for departure outside the 18-month period was refused, and the applications were dismissed. Similarly, the specific reasoning for the property settlement aspects, including the approach to asset division and the application of section 75(2) factors, is not elaborated upon in the provided extract.

The matter was adjourned to 1:00pm on 19 June 2014 in the Federal Circuit Court of Australia at Brisbane.

Orders

Orders of the court

This matter be adjourned to 1:00pm on 19 June 2014 in the Federal Circuit Court of Australia at Brisbane.

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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