GARVEY & JESS - [2017] FamCA 783

FAMILY COURT OF AUSTRALIA

GARVEY & JESS [2017] FamCA 783

FAMILY LAW – CHILDREN – Interim – Whether it is in the best interests of the children for an equal shared parental responsibility order to be made – Whether it is in the best interests of the children to maintain the current time between the father and children pending final hearing or increase the father’s time with the children – Whether school holiday time should end on the Sunday before school recommences or upon the recommencement of the school term – Orders made for equal shared parental responsibility and increased time between the father and the children.

FAMILY LAW – FINANCIAL AGREEMENT – Summary dismissal – After an order already made that a financial agreement was not void for uncertainty – Further application brought seeking the same financial agreement be set aside or declared not valid, enforceable or effective – Application of Anshun type estoppel – whether abuse of process – Whether there are special or exceptional circumstances – Further application dismissed.

Family Law Act 1975 (Cth) ss. 4, 4AB, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 65DAC, 79, 90K, 90KA

Family Law Rules 2004 (Cth) rr. 10.12 (c), 10.14

Banks & Banks (2015) FLC 93-637
Baghti & Baghti [2015] FamCAFC 71

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 Goode & Goode (2006) FLC 93-286

Henderson v Henderson (1843) 67 ER 313 at 319

Pelerman v Pelerman (2000) FLC 93-037

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Rahme v Commonwealth Bank of Australia (unreported New South Wales Court of Appeal, 20 December 1991)

SCVG & KLD (2014) FLC 93-582

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 26 CLR 507
University of Wollongong v Metwally (No. 2) (1985) 60 ALR 68

‘Anshun Today’: KR Handley (1997) 71 ALJ 934 at 940

APPLICANT:

Mr Garvey

RESPONDENT:

FILENUMBER:

Ms Jess

BRC 2175

2016

DATE DELIVERED: 3 August 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 17 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Kearney SC

SOLICITOR FOR THE APPLICANT: Barry.Nilsson Lawyers COUNSEL FOR THE RESPONDENT: Dr J A Watson SOLICITOR FOR THE RESPONDENT: Hirst & Co

ORDER

Parenting

The applicant and respondent shall have equal shared parental responsibility for all major long term issues (as that term is defined in section 4 of the Family Law Act 1975 (Cth)) for the children C born … 2007 and D born … 2009.
The children shall live with the respondent and spend time with the applicant during school term time as follows:
(a) In week 1 and each alternate week thereafter, from the conclusion of school on Wednesday until the commencement of school Friday; and
(b) In week 2 and each alternate week thereafter, from the conclusion of school on Wednesday until the commencement of school on Monday (or in the event that Monday is a…

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.

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Details

AGLC: GARVEY & JESS [2017] FamCA 783
Case: [2017] FamCA 783
Decision Date: 3 August 2017

CaseChat Overview and Summary

In the matter of *GARVEY & JESS*, Carew J of the Family Court of Australia considered applications concerning both children's matters and financial agreements. The children's proceedings involved an interim application regarding equal shared parental responsibility and the allocation of time between the father and the children pending a final hearing. The financial agreement proceedings concerned a further application to set aside or declare invalid a financial agreement, following a prior order that the agreement was not void for uncertainty.

The court was required to determine whether making an order for equal shared parental responsibility was in the best interests of the children. It also had to consider whether it was in the children's best interests to maintain the current time arrangements with the father pending the final hearing, or to increase his time. A further issue was the precise timing for the conclusion of school holiday time, specifically whether it should end on the Sunday before school recommences or upon the recommencement of the school term. In the financial agreement proceedings, the court had to consider whether the further application constituted an abuse of process, applying the principles of *Anshun* estoppel, and whether any special or exceptional circumstances warranted a departure from those principles.

Regarding the children's matters, Carew J made orders for equal shared parental responsibility and increased the father's time with the children. In the financial agreement proceedings, the court dismissed the further application, finding it to be an abuse of process and that no special or exceptional circumstances existed to justify entertaining the renewed challenge to the financial agreement.

Orders