Gingell & Oakes - [2023] FedCFamC2F 792

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gingell & Oakes [2023] FedCFamC2F 792

File number(s): MLC4904 of 2021

Judgment of: JUDGE HARLAND

Date of judgment: 30 June 2023

Catchwords:
FAMILY LAW – practice and procedure – self-represented litigant – non-compliance trial directions – adjournment refused – respondent permitted to rely on old affidavit

FAMILY LAW – parenting – whether or not the children should spend 4 or 5 nights a fortnight during school terms – property – disputes about property pool – percentage adjustment

Legislation: Family Law Act 1975 ss. 60B, 60CA, 60CC, 61DA, 62B, 65DA(2), 67Z, 79, 90SF, 90SF(3), 90SM(1), 90SM(3), 90SM(4), 90ST

Cases cited:
Morgan & Valverde [2022] FedCFamC1A 133

Saso & Saso [2023] FedCFamC1A 65

Stanford v Stanford (2012) 247 CLR 108

Watson & Ling (2013) 49 Fam LR 303

Division: Division 2 Family Law

Number of paragraphs: 101

Date of last submission/s: 23 May 2023

Date of hearing: 22, 23 May 2023

Place: Melbourne

Counsel for the Applicant Ms Nicola Bowen

Solicitor for the Applicant Halcyon Legal

The Respondent Self-represented litigant
ORDERS

MLC4904 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GINGELL

Applicant

AND:
MS OAKES

Respondent

order made by:

JUDGE HARLAND

DATE OF ORDER:

30 June 2023

THE COURT ORDERS THAT:
1.X born 2012 and Y born 2014 (collectively, the children), live with the mother and spend time with the father as follows:
(a)During the school term;
(i)Each second weekend from pick-up time at school on Friday until the commencement of school (or 4:00pm if a non-school day) on Monday;
(ii)Each alternate week, from school pick-up time Wednesday until school drop-off time Friday (or 4:00pm if a non-school day).

2.That within 90 days of the date of these Orders, the father pay to the mother the sum of $83,442 (the Payment).
3.That contemporaneously with the Payment, the parties do all acts and things and give all necessary instructions to cause the funds currently held in trust by K Lawyers to be distributed to the father.
4.That contemporaneously with the Payment:
(a)The mother do all acts and things and sign all such documents at her sole expense as may be required to discharge the mortgage registered number … to B Bank (Australia) Ltd (the C Street Mortgage) secured against the property situate at C Street, Suburb R (the C Street property), refinance the Mortgage into her sole name and indemnify the father in relation to the C Street Mortgage and all apportionable rates, taxes and outgoings and encumbrances relating to the C Street property of whatsoever nature and kind;
(b)The father do all acts and things and sign all such documents at his sole expense as may be required to discharge the mortgage registered number … to B Bank (Australia) Ltd (the D Street Mortgage) secured against the property situate at D Street, Suburb R (the D Street property), refinance the D Street Mortgage into his sole name and…

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 Gingell & Oakes

Details

AGLC: Gingell & Oakes [2023] FedCFamC2F 792
Case: [2023] FedCFamC2F 792
Decision Date

CaseChat Overview and Summary

The case of Gingell & Oakes was heard in the Federal Circuit and Family Court of Australia, Division 2. The case involved a dispute between the father, Mr Gingell, and the mother, Ms Oakes, regarding the parenting arrangements for their two children, X and Y, and the division of their property pool. The father was represented by counsel, while the mother was self-represented. The primary legal issues in this case were whether the children's time with the father during school terms should be a 9/5 or 10/4 arrangement, and the appropriate division of the property pool between the parties. The court considered the parties' contributions, the relevant s 90SF(3) factors, and what outcome is just and equitable. The court found that it was in the children's best interests for the father to spend an additional two night block with the children during school terms. The court also determined that the mother's contributions should be amended to 60% and the father's at 40%. Considering the s 90SF(3) adjustments, the mother should receive 65% of the net non-superannuation pool and the father 35%, requiring the father to make a payment of $83,442 to the mother.

Orders