KEARNEY & DILLON - [2013] FamCA 630

FAMILY COURT OF AUSTRALIA

KEARNEY & DILLON

[2013] FamCA 630

FAMILY LAW – PROPERTY SETTLEMENT – Where the husband and wife to a marriage seek an alteration of their property interests upon the breakdown of their relationship pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”) – Where the husband and the wife cohabited for approximately nine and a half years – Where there are two children of the relationship – Where the children are aged eight years old and six years old – Where the parties agreed that contributions to the date of separation should be assessed equally – Consideration of post separation contributions – Consideration of relevant factors under section 75(2) of the Act and particularly the husband’s greater earning capacity than the wife.
FAMILY LAW – CHILDREN – Where the parents agree that they should have equal shared parental responsibility – Where the children live with the wife ten nights per fortnight and with the husband four nights per fortnight – Where the husband seeks a gradual increase in time with the children to equal time – Where the Court declined to make an order for equal time but made orders for a gradual increase to substantial and significant time with the husband.
FAMILY LAW – SPOUSE MAINTENANCE – Where the wife seeks that the husband pay to her spouse maintenance in the sum of $650 per week – Where the husband opposes the wife’s application for spouse maintenance – Where the Court dismissed the wife’s application on the basis that the threshold test in section 72 of the Act had not been met.
FAMILY LAW – CHILD SUPPORT DEPARTURE – Where each of the parties seek a departure from the assessment of child support under sections 116 and 177 of the Child Support Assessment Act 1989 (Cth) – Where the current rate of child support being paid by the husband to the wife is $350 per child per week – Where the wife seeks to receive $800 per child per week – Where the husband proposed to pay $250 per child per week – Consideration of the “special circumstances” of the case – Where the Court declined to make a departure order.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

Budding & Budding [2009] FamCAFC 165
Goode v Goode (2006) FLC 93-286
Gyselman & Gyselman (1992) FLC 92-279
In the Marriage of Bevan (1995) FLC 92-600
In the Marriage ofMitchell (1995) FLC 92-601
Saberton & Saberton [2013] FamCAFC 89
Stanford & Stanford [2012] HCA 52

APPLICANT:

Mr Kearney

RESPONDENT:

Ms Dillon

FILE NUMBER:

SYC

5653

2010

DATE DELIVERED:

26 August 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

3, 4, 5 and 6 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sansom

SOLICITOR FOR THE APPLICANT:

Dettmann Longworth Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Boyle

SOLICITOR FOR THE RESPONDENT:

Robyn Sexton & Associates

Orders

Parenting

The parties shall have equal shared parental…

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: KEARNEY & DILLON [2013] FamCA 630
Case: [2013] FamCA 630
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Kearney (husband) and Ms Dillon (wife) sought an alteration of their property interests following the breakdown of their relationship, pursuant to section 79 of the *Family Law Act 1975* (Cth). The parties cohabited for approximately nine and a half years and have two children, aged eight and six. The proceedings also involved applications concerning children's matters, spouse maintenance, and child support departure.

The court was required to determine several legal issues. These included the division of the parties' property interests, considering their contributions both before and after separation, and the relevant factors under section 75(2) of the *Family Law Act 1975* (Cth), particularly the husband's greater earning capacity. Additionally, the court had to consider orders for parental responsibility and time spent with the children, the wife's claim for spouse maintenance, and applications by both parties for a departure from the assessed child support payments under the *Child Support (Assessment) Act 1989* (Cth).

Regarding property settlement, the court ordered that the wife pay the husband $481,238 within 60 days. Simultaneously, the husband was to transfer his interest in the property at Suburb V, New South Wales, to the wife, and the wife was to procure the discharge of the husband's obligations under the Commonwealth Bank loan secured by that property. The wife was also to pay her share of a joint debt to Mr and Mrs K and procure the husband's discharge from a joint line of credit liability, indemnifying him against it. In the event the wife failed to make the payment within 60 days, the Suburb V property was to be sold, with proceeds distributed in a specific priority, including payment of sale costs, discharge of debts, repayment of $190,000 to Mr and Mrs K, and then distribution of the balance with 65% to the wife and the remainder to her, followed by a payment of $217,410 to the wife, with any final balance going to the husband. The wife was also ordered to indemnify the husband regarding a loan from her mother. The court dismissed the wife's spouse maintenance application, finding the threshold test under section 72 of the *Family Law Act 1975* (Cth) was not met. Applications for child support departure were also declined. The parties consented to orders for equal shared parental responsibility, with the children living with the wife ten nights per fortnight and the husband four nights per fortnight. The court declined the husband's request for a gradual increase to equal time but made orders for a gradual increase to substantial and significant time with the husband.

Orders