Garrity & Ansellin - [2022] FedCFamC2F 217

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Garrity & Ansellin [2022] FedCFamC2F 217

File number(s): WOC 1305 of 2019

Judgment of: JUDGE KEMP

Date of judgment: 2 March 2022

Catchwords: FAMILY LAW – Property – de facto relationship – contributions – parties’ initial contributions – wife’s ownership of a property which subsists at final hearing – husband’s sale of a property and contribution of funds towards the wife’s mortgage – husband’s sporadic unemployment until final years of their relationship – drawdowns on the wife’s mortgage to fund living expenses – husband’s Do-It-Yourself works around the wife’s property – future needs – adjustment – just and equitable orders.

Legislation:
Family Law Act 1975 (Cth) ss 4(1), 4AA, 79, 90SB, 90SF, 90SM, 106A, 117

Evidence Act 1995 (Cth) ss 50, 128

Cases cited:
Aleksovski & Aleksovski (1996) FLC 92-705

Black and Kellner (1992) FLC 92-287

Botany Bay City Council v Minister for Planning and Infrastructure & Ors (No 2) [2014] NSWLEC 101

C & C (2005) FLC 93-220

Dickson & Dickson (1999) FLC 92-843

D & D (2006) FLC 93-256

Fenton & Marvel [2013] FamCAFC 132

G & G (1984) FLC 91-582

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

Idylic Solutions Pty Ltd & ors - Australian Securities and Investments Commission v Hobbs [2012] NSWSC 568

Luciano (2000) FamCA 401

Mallett & Mallett (1984) FLC 91-507

Norbis & Norbis (1986) 161 CLR 513

Parshen & Parshen (1996) FLC 92-720

Pierce & Pierce (1999) FLC 92-844

Re Chemaisse; Federal Commissioner of Taxation (Intervener) (1990) FLC 92-133

Russell & Russell (1999) FLC 92-877

Sippel & Sippel [2004] FamCA 201

Stanford & Stanford [2012] HCA 52

T & T (2000) FLC 93-023

Weir and Weir (1993) FLC 92-338.

Division: Division 2 Family Law

Number of paragraphs: 152

Date of last submission/s: 25 August 2021

Date of hearing: 3 & 4 June 2021

Place: Sydney

Counsel for the Applicant: Mr Wong

Solicitor for the Applicant: Shoalhaven Family Law Pty Ltd

Counsel for the Respondent: Mr Apelbaum
ORDERS

WOC 1305 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GARRITY

Applicant

AND:
MS ANSELLIN

Respondent

order made by:

JUDGE KEMP

DATE OF ORDER:

2 MARCH 2022

THE COURT ORDERS THAT:
1.These orders are made pursuant to s.90SM of the Family Law Act 1975 (Cth) (“the Act”).
2.Within 60 days of the date of these orders (“the due date”), the respondent de facto wife (“the wife”) make a payment to the applicant de facto husband (“the husband”) in the sum of $112,016.20 (“the settlement sum”).
3.In the event the wife is unable or fails to comply with the payment of the settlement sum in order 2, above, by the due date, then the husband and the wife shall be appointed as joint trustees as to the sale of the property situated at and known as B Street, Town C in the State of New South Wales (“

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 Garrity & Ansellin

Details

AGLC: Garrity & Ansellin [2022] FedCFamC2F 217
Case: [2022] FedCFamC2F 217
Decision Date

CaseChat Overview and Summary

The case of Garrity & Ansellin was an application for property orders under the Family Law Act 1975. The husband sought orders for a monetary payment from the wife, as well as a joint trusteeship for the sale of a property if the wife did not make the payment. The wife sought to retain sole ownership of the property and for the husband to pay her costs. The court determined that the parties' de facto relationship had broken down and that the court had jurisdiction to make property orders. The court identified and valued the parties' property, liabilities, superannuation, and financial resources. The court assessed the parties' contributions, both financial and non-financial, and determined that the wife's contributions were greater than the husband's. The court also considered the factors relevant to making an adjustment under section 90SF of the Act, including the parties' age, health, income, property, and financial resources. The court determined that an adjustment of 2.5% should be made in favor of the husband, resulting in the husband receiving 15% of the property and superannuation pool. The court found that the proposed orders were just and equitable in all the circumstances of the case. The court ordered that the wife make a payment to the husband within 60 days, and if she failed to do so, the property would be sold and the husband would receive a percentage of the net sale proceeds. The court also ordered that each party bear their own costs, subject to the considerations in section 117 of the Act.

Orders