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