Gavin & Garden - [2011] FamCA 190

FAMILY COURT OF AUSTRALIA

GAVIN & GARDEN

[2011] FamCA 190

FAMILY LAW - PRACTICE AND PROCEDURE - Application to vary or set aside consent orders pursuant to section 79A(1)(d) of the Family Law Act 1975 - Discussion as to what amounts to an ‘exceptional circumstance’ and ‘hardship’ - Application dismissed

Family Law Act 1975 (Cth)

Christian & McDonald (2008) FamCAFC 44
Garden & Gavin (No. 2), [2010] FamCAFC 125
Liu and Liu, (1984) FLC 91-572
Rohde and Rohde (1984) FLC 91-952
Sandrk and Sandrk, (1991) FLC92-260
Simpson and Hamlin (1984) FLC 91-576
Stanic and Stanic, [2007] FamCA 1492
Taylor and Taylor, (1979) 143 CLR 1
Whitford and Whitford (1979) FLC 90-612

APPLICANT:	Mr Gavin
RESPONDENT:	Ms Garden

FILE NUMBER:

BRC

14346

2007

DATE DELIVERED:

21 March 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Mushin J

HEARING DATE:

29 November 2010 – 2 December 2010 inclusive

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Summers of Counsel

SOLICITOR FOR THE RESPONDENT:

N/A

IT IS ORDERED THAT

The husband’s application seeking to vary or set aside the consent orders made on 5 May 2004 be and is hereby dismissed.
Any other application by either party be dismissed.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Gavin & Garden is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC13613/2007

Mr Gavin

Applicant

And

Ms Garden

Respondent

REASONS FOR JUDGMENT

introduction

The parties separated in August 2003. They issued competing applications for parenting orders and alteration of property interests. In May 2004 they consented to final orders (“the consent orders”) which brought all the proceedings to an end. The consent orders provided for the two children of their marriage to live in the primary care of the wife. They also provided for the wife to receive approximately 65% of the parties' assets with the husband to receive the balance.
Approximately 7 months after the consent orders were made, the children left the primary care of the wife and went to live in the primary care of the husband. From approximately 9 months after that change for a period of approximately 20 months, the children did not spend any time or communicate with their mother. Subsequently, formal orders were made providing for the children to live in the primary care of the husband and spend time with the wife.
The present application was made by the husband seeking the varying or setting aside of the consent orders insofar as they pertained to the competing applications for alteration of property interests and the making of new orders for alteration of property interests on the basis of the children's change of primary care. The wife seeks the dismissal of that application. These reasons for…

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 Gavin & Garden

Details

AGLC: Gavin & Garden [2011] FamCA 190
Case: [2011] FamCA 190
Decision Date: 21 March 2011

CaseChat Overview and Summary

The parties, Gavin and Garden, brought an application before the Family Court of Australia seeking to vary or set aside consent orders made under section 79A(1)(d) of the *Family Law Act 1975* (Cth). The core of the dispute concerned whether the circumstances met the threshold for variation or setting aside of those orders.

The court was required to determine what constitutes an "exceptional circumstance" and "hardship" for the purposes of section 79A(1)(d) of the *Family Law Act 1975*. This involved an analysis of the nature of the circumstances presented by the parties and whether they were sufficiently out of the ordinary to warrant interference with final consent orders.

In its reasoning, the court considered the established legal principles governing applications under section 79A(1)(d). It emphasised that the discretion to vary or set aside consent orders is to be exercised cautiously and only in circumstances that are truly exceptional and would otherwise cause significant hardship. The court found that the circumstances presented by the parties did not meet this high threshold.

Consequently, the application to vary or set aside the consent orders was dismissed.

Orders