Gare & Farlow [2023] FedCFamC2F 109

Gare & Farlow [2023] FedCFamC2F 109

Relationship Details

• Type: Marriage
• Duration: 10 years. Married in 2009, separated on 14 February 2019, and living apart since January 2020.
• Ages of the parties: both in their mid-forties

Children

• Two children from the marriage:
  • X, born in 2010 (aged 12)
  • Y, born in 2012 (aged 11)

Initial Financial Positions

• Wife:

  • Owned a property at Q Street, Suburb R bought in 2003 for $350,000; she said her father lent her $29,000 towards it.
  • Had a business, F Pty Ltd, bought in 1998 in equal shares with a friend. She bought her friend's half in 2002 for $75,000 and became sole owner. The business premises were later owned by her father, with no written lease.
  • Superannuation balance not specifically provided.

• Husband:

  • Owned a property at S Street, Suburb R.
  • Superannuation balance not specifically provided.

Contributions During the Relationship

• Financial Contributions:

  • Wife sold Q Street property, claiming net proceeds of $465,000 contributed to new matrimonial home purchase.
  • Husband sold property at S Street, net proceeds of $207,000 contributed.
  • Wife contributed $112,296 in personal savings to the matrimonial home.
  • Husband received a redundancy payout of about $56,569 in July 2018, which the court accepted went towards the mortgage.

• Non-financial Contributions:

  • Husband made various improvements to the matrimonial home using trade skills.
  • Wife primarily managed childcare responsibilities along with business management.

Post-Separation Contributions and Actions

• Financial Contributions:

  • Wife made decisions regarding school fees, children’s expenses.
  • Husband paid mortgage for some duration post-separation.

• Non-financial Contributions:

  • Wife continued primary care for the children.

• Dissipation of Assets:

  • The wife paid $106,681.87 to her father in August 2018, just before separation, as a claimed loan repayment, from savings she had not disclosed. The court added it back to the asset pool.

Current Financial Position & Property Pool

• Wife:

  • Income approximately $62,000 via business.
  • Superannuation of $388,746, about $61,000 more than the husband's $327,707.

• Husband:

  • Income approximately $107,711 from employment.

• Property Pool:

  • The parties' figures for the pool ranged from about $3,115,000 to $3,605,166 including superannuation. The court found the net pool excluding superannuation was $3,048,359, valuing the wife's business at $429,500.
  • Major assets included:
    • B Street, Suburb C (matrimonial home) valued at $2,175,000
    • D Street, Town E property valued at $550,000

Assessment of Contributions and Future Needs

• Contributions:

  • Assessed at 65% to the wife and 35% to the husband, largely because of the wife's greater initial contributions.

• Future Needs Adjustments:

  • Additional 1% adjustment in the wife's favour, weighing all the future needs factors including her care of the children and the superannuation disparity. The court found the parties had comparable earning potential.

• Final Division: 66% to Wife and 34% to Husband of the non-superannuation pool. Wife retains the matrimonial home and the business and pays the husband $410,542; the husband keeps the D Street, Town E property. Each keeps their own superannuation.

Unique Aspects

• Significant valuation dispute about the wife's business, between two opposing experts, made harder by the lack of a written lease of premises owned by her father.
• Controversy over financial disclosure by both parties, particularly undisclosed funds and non-disclosure of bank accounts.
• Evaluation considered potential benefits and support systems available to the parties, including living arrangements impacting childcare.

Appeal

The wife appealed the property orders only, arguing chiefly that the business had been over-valued. In Gare & Farlow [2023] FedCFamC1A 98 (23 June 2023) Austin J, sitting in the Appeal Division, dismissed the appeal and ordered the wife to pay the husband's costs of the appeal, fixed at $18,000.

The law since this decision

This case was decided before 10 June 2025. From that date the Family Law Act 1975 (Cth) sets out the steps for a property settlement in s 79(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 79(4)(ca)) and on their current and future circumstances (s 79(5)(a)), and any material wastage of property (s 79(5)(d)). In Western Australia, a property case between married couples is decided under that Act in the Family Court of Western Australia. A case between de facto partners in Western Australia is decided under the Family Court Act 1997 (WA), which has not adopted those 2025 changes.