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Garden & Gavin (No 2)

Garden & Gavin (No 2)

Case [2010] FamCAFC 125 2 July 2010

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FAMILY COURT OF AUSTRALIA

GARDEN & GAVIN (NO. 2)

[2010] FamCAFC 125

FAMILY LAW - APPEAL – PROPERTY – Appeal from the Family Court of Australia – Trial judge set aside consent orders – Exceptional circumstances – Change of children’s living arrangements from the wife’s care to the husband – Whether hardship established – Consent orders set aside and no final property orders made in lieu – Consideration of Simpson and Hamlin (1984) FLC 91-576 – Appeal allowed

FAMILY LAW - APPEAL – NATURAL JUSTICE – Whether trial judge was biased – Where previous orders limited the material for trial – Whether the wife waived her right to appeal on the basis of bias – Wife self-represented – No denial of natural justice evident – Trial judge acceded to wife’s requests

FAMILY LAW - APPEAL – PROPERTY – Appeal from the Federal Magistrates Court – Final property hearing nearly two years after consent orders set aside – Wife did not participate in hearing – Reliance on “kerbside” evaluation – Incorrect consideration of husband’s superannuation – Section 75(2) adjustment outside reasonable range – Failure to take into account payment by wife to husband pursuant to consent orders – Appeal allowed

FAMILY LAW - COSTS – Cost certificates – Outcome of judgment not due to conduct of parties

Family Law Act 1975 (Cth) s 75(2), s 79, s 79A(1)
Federal Proceedings (Costs) Act 1981 (Cth) s 6, s 8

Bloomberg & Rod [2010] FamCAFC 112
C & C [1999] FamCA 1268
Parker and Parker (1983) FLC 91-364
Sandrk and Sandrk (1991) FLC 92-260
Simpson and Hamlin (1984) FLC 91-576
Y & Y [1995] FamCA 102

APPELLANT:

Ms Garden

RESPONDENT:

Mr Gavin

FILE NUMBER:	BRF	3025	of	2003
BRF	14346	of	2007

APPEAL NUMBER:	NA	20	of	2010
NA	75	of	2009

DATE DELIVERED:

2 July 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Faulks DCJ, May and Benjamin JJ

HEARING DATE:

2 June 2010

LOWER COURT JURISDICTION:

Family Court of Australia

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

18 October 2007

18 September 2009

LOWER COURT MNC:

[2007] FamCA 1271
[2009] FMCAfam 1116

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Fajardo

SOLICITOR FOR THE RESPONDENT:

In person

Orders

The appeals NA 20 of 2010 and NA 75 of 2009 be allowed.
Leave be granted to the wife to appeal orders 3 and 4 of the orders made by Bell J on 18 October 2007.
By consent, orders 3 and 4 of the orders made by Bell J on 18 October 2007 be set aside.
Order 1 of the order made by Bell J on 18 October 2007 be set aside.
The orders made by Howard FM on 18 September 2009 be set aside.
The applications of the husband filed 10 May 2006 (as amended on 18 May 2007) that the property orders made by O’Reilly J on 5 May 2004 be set aside pursuant to s 79A of the Family Law Act 1975 (Cth) be listed for re-hearing.
Until the hearing…

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 Garden & Gavin (No 2)

Details

AGLC: Garden & Gavin (No 2) [2010] FamCAFC 125
Case: [2010] FamCAFC 125
Decision Date: 2 July 2010

CaseChat Overview and Summary

Garden & Gavin (No 2) involves an appeal against several family law decisions concerning property and procedural fairness. The parties are a husband and wife who were previously married and have children together. The dispute began when the trial judge set aside consent orders, changing the children’s living arrangements from the wife’s care to the husband’s, and subsequently refused to make final property orders in lieu. The wife appealed, arguing the trial judge was biased and that the Federal Magistrates Court erred in its property settlement.

The legal issues before the court included whether the trial judge was biased and whether the wife waived her right to appeal on that basis. The wife, who was self-represented, also contested the Federal Magistrates Court's property settlement, arguing it incorrectly evaluated the husband's superannuation, made a Section 75(2) adjustment outside the reasonable range, and failed to consider a payment made by the wife to the husband. The wife contended that the trial judge's reliance on a "kerbside" evaluation was improper and that the Federal Magistrates Court did not adequately consider the impact of the change in living arrangements on the property settlement.

The court found that the trial judge was not biased, as he accommodated the wife's requests and there was no evidence of a denial of natural justice. Regarding the Federal Magistrates Court's property settlement, the court determined that the evaluation process was flawed and that the court failed to consider several relevant factors, including the payment by the wife to the husband. The court also found that the adjustment made under Section 75(2) was outside the reasonable range. The appeal was allowed, and the orders of both the trial judge and the Federal Magistrates Court were set aside. Costs certificates were issued to both parties in relation to the appeal and the rehearing of the property settlement.

Orders

Orders of the court

The appeals NA 20 of 2010 and NA 75 of 2009 be allowed.

Leave be granted to the wife to appeal orders 3 and 4 of the orders made by Bell J on 18 October 2007.

By consent, orders 3 and 4 of the orders made by Bell J on 18 October 2007 be set aside.

Order 1 of the order made by Bell J on 18 October 2007 be set aside.

The orders made by Howard FM on 18 September 2009 be set aside.

The applications of the husband filed 10 May 2006 (as amended on 18 May 2007) that the property orders made by O’Reilly J on 5 May 2004 be set aside pursuant to s 79A of the Family Law Act 1975 (Cth) be listed for re-hearing.

Until the hearing and determination of the husband’s s 79A application the wife is restrained from further transferring, encumbering, mortgaging or otherwise dealing with the former matrimonial home situated at A in the State of Queensland.

The Court grants to the appellant wife a costs certificate pursuant to section 9 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 appellant wife in respect of the costs she has incurred in relation to the appeal.

The Court grants to the respondent husband a costs certificate pursuant to section 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 husband in respect of the costs he has incurred in relation to the appeal.

10.

The Court grants to each party a costs certificate pursuant to the provisions of section 8 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 them in respect of the costs incurred by them in relation to the rehearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Garden & Gavin (No 2) [2010] FamCAFC 125

Most Recent Citation

Farrant & Farrant [2024] FedCFamC2F 100

Cases citing this decision · 8 of 8 shown

Farrant & Farrant
[2024] FedCFamC2F 100 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…
PATEL and NOORA
[2019] FCWA 260

…) (1994) FLC 92-479 Cawthorn v Cawthorn (1998) FLC 92-805 Consolaro v Consolaro [2002] WASC 92 Ebner & Pappas (2014) FLC 93-619 Garden & Gavin (No 2) [2010] FamCAFC 125 Lindon v Commonwealth (No 2) (1996) 136 ALR 251 Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 MCG v JM [2016] WASCA 75 Port of Melbo…
CARMAN & CARMAN
[2017] FamCA 99 Para 2

…by the wife would be the inability to refinance and thereby retain, the Suburb E property. [2] I note that the Full Court in Garden & Gavin (No 2) [2010] FamCAFC 125 considered hardship relevant only in the context of the applicant, not the child. The first instance judge, on hearing the remitted case, had a differe…
Milavic and Banks (No 2)
[2016] FamCA 884 Para 12

…In Garden & Gavin (No 2) [2010] FamCAFC 125 the Full Court addressing the hardship test in relation to an application pursuant to s 79A(1)(d) of the Act to set aside orders for property settlement followed the decision of the Full Court in Simpson & Hamlin (1984) FLC 91-576 saying as follows: [56] As their Honours in…
Sykes and Sykes
[2016] FCCA 1956 Para 4

…ing of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child[7]. [7] Garden & Gavin (No.2) [2010] FamCAFC 125.…
FEWSTER & DRAKE
[2015] FamCA 602 Para 8

…draw from case law on sec 79A(1)(d) for guidance, as sec 90K(d) is modelled on that section. In the judgment of Garden and Gavin (No. 2) [2010] FamCAFC 125, the Full Court set out the following test: [46.] It is clear that three elements must be satisfied before an order can be made setting aside property orders pur…
Pascot & Pascot
[2011] FamCA 945 Para 1

…necessary to draw from case law on sec 79A(1)(d) for guidance, as sec 90K(d) is modelled on that section. In the judgment of Garden and Gavin (No. 2) [2010] FamCAFC 125, the Full Court set out the following test: [46.] It is clear that three elements must be satisfied before an order can be made setting aside propert…
Gavin & Garden
[2011] FamCA 190 Para 4

…wife's appeal to the Full Court which resulted in this rehearing. The reasons for judgment of the Full Court are reported as Garden & Gavin (No. 2), [2010] FamCAFC 125. Relevantly to the question of hardship, the Court held (para. 46): 46. It is clear that three elements must be satisfied before an order can be made…

View all 8 citing cases →

Cases cited in this decision · 9 of 9 shown

LAMBERT & ADAMSON
[2009] FMCAfam 1116

…[2007] FamCA 1271 [2009] FMCAfam 1116…
Bloomberg & Rod
[2010] FamCAFC 112 Para 4

…In Bloomberg & Rod [2010] FamCAFC 112, the Full Court dealt with an allegation of bias first raised on appeal. In that judgment it was said: 100.…We accept that the authorities are clear that an issue not raised before a trial judge cannot generally be agitated on appeal (see Suttor v Gundowda Pty. Ltd. (1950) 81 CLR…
Gavin and Garden (No. 2)
[2007] FamCA 1271

…[2007] FamCA 1271 [2009] FMCAfam 1116…
Smits v Roach
[2006] HCA 36 Para 4

…d, footnotes omitted) 103.The High Court most recently affirmed the decision of Vakauta v Kelly (supra) in Smits and Another v Roach and Others (2006) 227 CLR 423, where the majority (Gleeson CJ, Heydon and Crennan JJ) said at 439: It has been held in this Court, on a number of occasions, that an objection to the con…
Vakauta v Kelly
[1989] HCA 44 Para 4

…t may be subsequently waived. 101.The leading authority with respect to waiver of the right to object is the High Court decision of Vakauta v Kelly (1989) 167 CLR 568.The majority (Brennan, Deane and Gaudron JJ) said at 572: Where such comments which are likely to convey to a reasonable and intelligent lay observer a…
Taylor v Taylor
[1979] HCA 38 Para 12

…he grounds of appeal in this case relies on the provision of s 81 of the Act. In Simpson and Hamlin there was reference to the decision of Mason J in Taylor v Taylor (1979) FLC 90-674 at p.78,595 emphasising as we would also do in this case what was said by his Honour although in relation to a different section of s 79A(…
Suttor v Gundowda Pty Ltd
[1950] HCA 35 Para 4

…hat the authorities are clear that an issue not raised before a trial judge cannot generally be agitated on appeal (see Suttor v Gundowda Pty. Ltd. (1950) 81 CLR 418). However, it is important to look at the reasons for that, and they relate to the notion that unless an allegation of bias and prejudgment is raised a…
Youseff & Youseff
[1995] FAMCA 102 Para 10

…er the movement of the children from the mother’s house to the fathers was an “exceptional circumstance”, Bell J referred to the cases of Y & Y [1995] FamCA 102, an unreported decision of Fogarty, Kay and Cohen JJ on 22 September 1995, and the decision of O’Ryan J in C & C [1999] FamCA 1268. Of those decisions, his…
C & C
[1999] FAMCA 1268 Para 10

…es of Y & Y [1995] FamCA 102, an unreported decision of Fogarty, Kay and Cohen JJ on 22 September 1995, and the decision of O’Ryan J in C & C [1999] FamCA 1268. Of those decisions, his Honour said: 17.…There are two things for me to determine, is the mere, if I might use that word advisedly, moving of the children f…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
75(2) 2 mentions (from Para 6)
Federal Proceedings (Costs) Act 1981 (Cth)
6 2 mentions (from Para 8)