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Gare & Farlow

Gare & Farlow

Case [2023] FedCFamC2F 109 17 February 2023

Child’s Best Interests

Equal Shared Parental Responsibility

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gare & Farlow [2023] FedCFamC2F 109

File number: MLC 10265 of 2019

Judgment of: JUDGE FORBES

Date of judgment: 17 February 2023

Catchwords:
FAMILY LAW –PROPERTY – application for adjustment of property interests – establishing the asset pool – valuation of wife’s business – whether business to be valued according to net asset backing, capitalised earnings or “value to owner” – evaluation of competing expert evidence – whether loan repayment to wife’s father to be added back – whether parties have made proper financial disclosure – initial contributions of one party greater than the other – consideration of future needs including income earning potential of each party – whether superannuation disparity taken into account – where property adjustment just and equitable

FAMILY LAW – PARENTING – application for increased time with father – consideration of children’s wishes where loyalty conflict exists – whether increased time for siblings should be aligned or staggered – consideration of conditions for increased time and best interests of the children

Legislation:
Evidence Act 1995 (Cth), s 79

Family Law Act 1975 (Cth), s 60CC, 75, 79

Federal Circuit and Family Court of Australia Rules 2021, r 6.06

Federal Circuit Court Rules 2001, r 24.03

Cases cited:
Aitken and Murphy [2013] FamCA 3

Bevan v Bevan [2013] FamCAFC 116; (2013) FLC 93-545

Black & Kellner (1992) 15 Fam LR 343

Calverley v Green (1984) 155 CLR 242

C & C [1998] FamCA 143

Chapman & Chapman [2014] FamCAFC 91

Chick & Chick [1987] FamCA 69

Dasreef Pty Ltd v Hawchar [2011] HCA 21

Dickons & Dickons [2012] FamCAFC 154

Fields & Smith [2015] FamCAFC 57

G & G (1984) FLC 91-582

Guinti and Giunti (1986) 11 Fam LR 160 at 165; [1986] FLC 91-759

Harrison & Harrison (1996) FLC 92-682

Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143

In the Marriage of Briese (1985) 10 Fam LR 642; (1986) FLC 91-713

Lee Steere & Lee Steere [1985] FamCA 57

AJO & GRO (2005) 33 Fam LR 134

Reynolds & Reynolds (1985) FLC 91-632

Scott & Scott (2006) FamCA 1379

Spencer v The Commonwealth of Australia (1907) HCA 82; 5 CLR 418

Stanford & Stanford (2012) 247 CLR 108

Taylor & Taylor & Taylor [2000] FamCA 308

Turnbull & Turnbull (1991) FLC 92-258

Vass & Vass [2015] FamCAFC 51

Warne & Warne (1982) 8 Fam LR 388

Wallis & Manning [2017] FamCAFC 14

Weir & Weir (1993) FLC 92-338; (1992) 16 Fam LR 154

Wilde & Wilde [2007] FamCA 1044

Wender & Wender [2017] FamCAFC 48

Division: Division 2 Family Law

Number of paragraphs: 481

Date of last submissions: 9 August 2022

Date of hearing: 14 – 17 February 2022

Place: Melbourne

Counsel for the Applicant: Mr Hutchings

Solicitor for the Applicant: Garland Hawthorn Brahe

Counsel for the Respondent: Mr Williams

Solicitor for the Respondent: Cohrssen Partners Pty Ltd
ORDERS

MLC 10265 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

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 Gare & Farlow

Details

AGLC: Gare & Farlow [2023] FedCFamC2F 109
Case: [2023] FedCFamC2F 109
Decision Date

CaseChat Overview and Summary

This case involved an application for an adjustment of property interests and parenting orders. The application was made by Ms Gare against Mr Farlow, with whom she was formerly married. The parties had two children, X and Y. The Court found that it was just and equitable to make an order adjusting the parties’ property interests. The Court identified and valued the parties’ assets and liabilities and assessed the contributions of the parties, including their initial contributions. The Court also assessed the other relevant considerations and exercised its discretion to make an order that is just and equitable in all the circumstances. The Court found that the wife’s business was valued at $56,948, the “shed contents” retained by the husband were valued at $28,400 and the household chattels retained by the wife were valued at $5,000. The Court found that the wife’s father would not offer a written lease to the business and that the business would be of little interest to a purchaser without a lease. The Court found that the “loan repayment” of approximately $106,000 made by the wife to her father in August 2018 should not be “added back” into the matrimonial asset pool. The Court found that the parties’ initial contributions were substantially equal, but that the wife’s greater initial contribution should be given weight as a springboard for the parties’ future accumulation of wealth. The Court found that the husband’s financial contributions should be regarded as having been offset or diminished by his withdrawals for personal expenditure. The Court found that the wife’s homemaker and parental responsibilities were not properly assessed by the husband’s expert. The Court found that the wife’s future income potential was uncertain and that the husband’s future income potential was compromised by a hip injury. The Court found that the difference in superannuation balances should not be taken into account as a discretionary adjustment in favour of the husband. The Court found that the parties have equal shared parental responsibility for the children and that the children should live with the wife. The Court found that the children should spend time and communicate with the husband as follows: during school terms, in week 1, from the conclusion of school (or 3.30pm on a non-school day) Thursday until the commencement of school Friday (or 9am if a non-school day) and in week 2, from the conclusion of school Thursday (or 3.30pm on a non-school day) until the commencement of school Monday. The Court found that for the first 6 months after the husband obtains his own residence with separate bedrooms for each child, Y’s time with the husband should be suspended and Y should spend time and communicate with the husband during school terms as follows: in week 1, from the conclusion of school (or 3.30pm if a non-school day) Thursday until 8pm and in week 2: A. From the conclusion of school Thursday (or 3.30pm on a non-school day) until 8pm; and B. From the conclusion of school Friday until the commencement of school Monday. The Court found that following the expiration of 6 months after the husband obtains his own residence with separate bedrooms for each child, Y should spend time and communicate with the husband at the times set out in paragraph 17(a) to 17(d). The Court found that the parties should facilitate the children communicating with the other parent via telephone or video chat at reasonable times upon their request to do so. The Court found that each party should be permitted to take the children for holidays intrastate or interstate during the periods they are in their care and that any international travel with the children must be agreed upon in writing. The Court found that each party should be restrained by injunction from denigrating the other in the presence or hearing of the children or permitting any other person to do so. The Court made orders for property adjustment and parenting arrangements and ordered that any application for costs should be filed and served within 28 days.

Orders