Andrew & Delaine

Case [2009] FamCAFC 182


FAMILY COURT OF AUSTRALIA

ANDREW & DELAINE [2009] FamCAFC 182

FAMILY LAW – APPEAL – PARENTING ORDERS – Whether the trial Judge erred in departing from the recommendations of the expert without adequate reasons – Where the trial Judge carefully assessed all of the relevant evidence – Where the trial Judge extensively reviewed the expert’s reports and evidence in her reasons – Where the expert had not been aware of the high level of animosity between the parties about property proceedings – Where steps had been taken by the wife to restore the relationship between the husband and the children – No appealable error

FAMILY LAW – APPEAL – PROPERTY ORDERS – Whether the trial Judge erred in assessing the contributions of the parties – Where the trial Judge carefully assessed the parties’ contributions during the marriage – Where the findings made by the trial Judge were open to her on the evidence – No appealable error

FAMILY LAW – APPEAL – PROPERTY ORDERS – Whether the trial Judge was in error in making a s 75(2) adjustment in favour of the wife – Whether the trial Judge failed to consider the differential in the parties’ income earning capacity – Where the trial Judge took all relevant matters into account – Where the adjustment made was open to the trial Judge – No appealable error

FAMILY LAW – APPEAL – COSTS – Where the husband was wholly unsuccessful in the appeal – Where both parties have capacity to pay any costs order made – Husband to pay wife’s cost of and incidental to the appeal and the costs of the Independent Children’s Lawyer

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 60CC(3)(d), 60CC(3)(l), 75(2)
Bellenden (formerly Satterthwaite)  v Satterthwaite [1948] 1 All ER 343
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
Hall & Hall (1979) FLC 90-713
House v The King (1936) 55 CLR 499
Jones v Dunkel (1959) 101 CLR 298
Mallet v Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
APPELLANT: Mr Andrew
RESPONDENT: Ms Delaine
INDEPENDENT CHILDREN’S LAWYER: Brendan Bowler
FILE NUMBER: ADF 1216 of 2004
APPEAL NUMBER: SA 110 of 2008

DATE DELIVERED:

6 October 2009
PLACE DELIVERED: Sydney
PLACE HEARD: Adelaide
JUDGMENT OF: May, Boland & Strickland JJ
HEARING DATE: 20 July 2009
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 5 December 2008
LOWER COURT MNC: [2008] FamCA 1059

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Tredrea
SOLICITOR FOR THE APPELLANT: D M Davidson
COUNSEL FOR THE RESPONDENT: Mr Whittle
SOLICITOR FOR THE RESPONDENT: David Burrell & Co
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bowler
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hume Taylor & Co

Orders

  1. That the appeal is dismissed.

  2. That the husband pay the wife’s costs of and incidental to the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

  3. That the husband pay the Independent Children’s Lawyer’s costs in the sum of…

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Details
AGLC
Andrew & Delaine [2009] FamCAFC 182
Case
[2009] FamCAFC 182
Decision Date

CaseChat Overview and Summary

The case of Andrew & Delaine was heard in the Family Court of Australia, where the primary judge made various orders regarding parenting, property, and costs. The husband appealed these orders, claiming the judge erred in her assessment of parenting arrangements, property division, and in making a s 75(2) adjustment in favour of the wife. The wife cross-appealed regarding costs. The central issues in the appeal were whether the trial judge erred in departing from the recommendations of the expert without adequate reasons, in assessing the contributions of the parties, and in making a s 75(2) adjustment in favour of the wife. The court found that the trial judge had carefully assessed all relevant evidence and provided comprehensive reasons for her decisions. The judge had extensively reviewed the expert's reports and evidence, taking into account the high level of animosity between the parties and the wife's efforts to restore the relationship between the husband and the children. The court held that the trial judge's findings on the parties' contributions and the s 75(2) adjustment were open to her on the evidence, and there was no appealable error. Consequently, the appeal was dismissed. The husband was ordered to pay the wife's costs of the appeal, as agreed or assessed, and the costs of the Independent Children's Lawyer in the sum of $3,170.00.

Orders

Orders of the court

1.

That the appeal is dismissed.

2.

That the husband pay the wife’s costs of and incidental to the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

3.

That the husband pay the Independent Children’s Lawyer’s costs in the sum of $3,170.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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