Garnier & Garnier (No 2) - [2022] FedCFamC1F 351

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garnier & Garnier (No 2) [2022] FedCFamC1F 351

File number(s): SYC 8916 of 2020

Judgment of: ALDRIDGE J

Date of judgment: 19 May 2022

Catchwords:
FAMILY LAW – INTERIM – Where the wife seeks interim orders for spousal maintenance, interim property settlement, interim costs, child support departure and adult child maintenance – Where the wife also seeks to enforce existing orders for the payment of regular sums by the husband – Where the husband does not have the capacity to meet the payments sought by the wife – Applications for spousal maintenance, interim property settlement, child support departure and enforcement are dismissed – Claim for adult child maintenance not established – Appropriate approach is to make a dollar for dollar order on the basis the husband pay to the wife some contribution of her costs to be incurred.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband seeks to have the wife’s affidavit struck out due to the length – Where selected portions of the wife’s affidavit are relied upon – Application is futile – Application dismissed.

Legislation:
Child Support Assessment Act (1989) (Cth) ss 98X, 99, 117

Family Law Act 1975 (Cth) ss 72, 177

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 25, 66L, 68, 132

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.08(2)

Cases cited:
Gamble & Gamble (1978) FLC 90-452

Rakete v Rakete (2013) 48 Fam LR 325

Salvage & Fosse (2020) FLC 93-966

Strahan & Strahan (Interim property orders) (2011) FLC 93-446

Wall & Mitchell [2010] FamCA 1194

Zschokke and Zschokke (1996) FLC 92-693

Division: Division 1 First Instance

Number of paragraphs: 107

Date of hearing: 22 March 2022

Place: Sydney

Counsel for the Applicant: Mr Batey

Solicitor for the Applicant: York Law

Counsel for the First and Fourth Respondents: Mr Kearney SC with Ms Jeliba

Solicitor for the First and Fourth Respondents: Barkus Doolan Family Lawyers

The Second and Third Respondents: Did not participate
ORDERS

SYC 8916 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GARNIER

Applicant

AND:
MR GARNIER

First Respondent

MS C GARNIER
Second Respondent

B PTY LTD

Third Respondent

P PTY LTD

Fourth Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

19 MAY 2022

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 25 January 2022 is dismissed.
2.Orders 1.1 and 1.2 made on 15 February 2021 are discharged as from the date of these orders.
3.The Court declares that, as at 1 December 2021, the respondent owed the applicant $24,000 and $28,000 pursuant to Orders 1.1 and 1.2, respectively, made on 15 February 2021.
4.The Application in a Proceeding filed on 17 December 2021 is otherwise dismissed.
5.From the date of these orders:
(a)Within seven (7) days after any payment made by or on behalf of the respondent for accounts rendered by his solicitors for work undertaken by them and disbursements, excluding payments…

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 Garnier & Garnier (No 2)

Details

AGLC: Garnier & Garnier (No 2) [2022] FedCFamC1F 351
Case: [2022] FedCFamC1F 351
Decision Date

CaseChat Overview and Summary

The case of Garnier & Garnier (No 2) [2022] FedCFamC1F 351 was heard in the Federal Circuit and Family Court of Australia. Ms Garnier, the wife, sought interim orders for spousal maintenance, interim property settlement, interim costs, child support departure and adult child maintenance. She also sought to enforce existing orders for the payment of regular sums by Mr Garnier, the husband, who had not been paying. The husband opposed these orders and proposed instead that the matrimonial home be sold and that from the proceeds each party receive $250,000 as a partial property settlement. The court had to determine whether to grant the wife's requests and if the husband had the capacity to meet the payments sought.

The court dismissed the wife's applications for spousal maintenance, interim property settlement, child support departure and enforcement. It also found that the claim for adult child maintenance was not established. The court made a dollar-for-dollar order on the basis that the husband should pay some contribution of the wife's costs to be incurred. The court dismissed the husband's application to have the wife's affidavit struck out due to its length, as selected portions of the affidavit were relied upon without objection.

The court found that the husband did not have the capacity to meet the payments sought by the wife, even though he had been freed from some of his previous obligations. The court discharged the order for the payment of $1,500 per week and the order as to the provision of the credit card made on 15 February 2021 because the husband had no apparent means to meet the orders. The court also found that the wife had not identified a source of funds from which either the partial property settlement could be made or the order for lump sum of costs to be paid.

Orders