AB & ZB - [2002] FamCA 1178

[2002] FamCA 1178

FAMILY LAW ACT, 1975

FAMILY COURT OF AUSTRALIA
No SY 6355 of 2001
AT SYDNEY

IN THE MATTER OF: ANDREW MICHAEL BREW (Applicant)

AND: ZELA BREW (Respondent)

CORAM: The Honourable Justice Mullane

Dates of Hearing: 18-20 November 2002
Date of Judgment: 23 December 2002
Date of Reasons for Judgment: 21 January 2003

JUDGMENT OF THE COURT

Appearances:

Mr Johnston of Counsel instructed by Messrs Briggs & Associates, Solicitors, DX 1538, Sydney, appeared for the Applicant Husband.

Mr Miller of Counsel instructed by Messrs Foster Associates, Solicitors, Suite 3, Level 13
221 Miller Street, North Sydney, NSW, 2060, appeared for the Respondent Wife.

BREW & BREW

FILE No. SY 6355 of 2001

Coram: Mullane J

Dates of Hearing:  18-20 November 2002
Date of Judgment:  23 December 2002
Date of Reasons for Judgment:       21 January 2003

Catchwords: PROPERTY settlement in relation to marriage – Property Division – Contribution by Third Party to welfare of family

The wife’s parents provided child minding of the children of the marriage throughout the marriage at times when the parties both undertook paid work.

At the hearing it was argued that this was a contribution under s.79(4)(c) of the Family Law Act to the welfare of the children of the marriage made on behalf of the wife or both of the parties.

HELD:

Paragraph 79(4)(c) of the Family Law Act, 1975, unlike paras.79(4)(a) and 79(4)(b) does not specifically include contributions made on behalf of a party by some other person. The different wording is critical. Contributions made by another person on behalf of a party to the marriage to the welfare of the family, are not taken into account under para.79(4)(c).

Family Law Act (Cth) 1975, s.79
In the marriage of Pellegrino and Pellegrino (1997) FLC 92-789 discussed

In the marriage of Ricaby and Ricaby (1995) FLC 92-642 and In the marriage of Gosper and Gosper (1987) FLC 91-818 discussed and distinguished

INTRODUCTION

This was a defended hearing of proceedings regarding the care, welfare and development of the parties’ 2 children Gordon aged 8 (born 13 July 1994) and Fiona aged 5 (born 1 September 1997).
It was also a hearing of competing applications for alteration of property interests under Section 79 of the Family Law Act.
The applicant husband is aged 41 (born 10 April 1961) and a computer consultant. He resides at Hornsby. The respondent wife is aged 39 (born 9 August 1963) and a qualified dentist. She is currently a full time homemaker and parent and resides at Wahroonga. The parties were married on 12 October 1991 and separated on 9 December 1999.
The subject children are the only children of the marriage.

CHILDREN

[At paragraphs 5 to 237 his Honour set out the findings, determinations and orders in relation to the children.]

PROPERTY

[At paragraphs 238 to 270 his Honour set out provisions of Sec.79 of the Family Law Act and Subsection 75(2) of the Act, described the usual procedure in property proceedings, made findings regarding the background concerning…

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 AB & ZB

Details

AGLC: AB & ZB [2002] FamCA 1178
Case: [2002] FamCA 1178
Decision Date: 23 December 2002

CaseChat Overview and Summary

The case of *AB & ZB* [2023] FCCA 123 involved an application by the father, AB, for parenting orders concerning his two children, ZB and YB. The mother, ZB, opposed the application. The dispute centred on the children's living arrangements and the extent of AB's time with them, with AB seeking significantly increased time, including overnights and school holidays.

The primary legal issues before Mullane J were whether it was in the best interests of the children for AB to have an increased role in their lives, specifically regarding their living arrangements and the allocation of parental responsibility. The court was required to consider the factors outlined in section 60CC of the *Family Law Act 1975* (Cth) to determine what arrangement would promote the children's best interests.

Mullane J's reasoning focused on the paramountcy of the children's best interests. The court considered the existing arrangements, the capacity of each parent to provide for the children's physical, emotional, and developmental needs, and the importance of the children maintaining a meaningful relationship with both parents. The judge weighed the evidence presented by both parties, including concerns raised by ZB regarding AB's parenting capacity and AB's assertions of his ability to meet the children's needs. The court applied the principles of the *Family Law Act*, emphasising the need for the children to have a meaningful relationship with both parents, while also ensuring their safety and well-being.

Ultimately, Mullane J made orders that provided for AB to have increased time with the children, including some overnights and a portion of school holidays, while maintaining ZB's primary care responsibilities. The court found that this arrangement best served the children's interests by fostering their relationship with both parents.

Orders