BENWORTH & BENWORTH - [2012] FamCAFC 32

FAMILY COURT OF AUSTRALIA

BENWORTH & BENWORTH

[2012] FamCAFC 32

FAMILY LAW – APPEAL – CHILDREN – where trial judge refused mother’s application to relocate to London with parties’ child – where numerous grounds of appeal – where one ground found to have merit – where trial judge made orders in relation to time over the school holidays which were not agitated by either party – where his Honour’s Reasons do not make explicit how his Honour determined that the order made was in the child’s best interests – whether trial judge erred – where appeal allowed in respect of this ground.

FAMILY LAW – APPEAL – PROPERTY – where trial judge made an order requiring transfer of a property in London to the appellant – where both parties ultimately sought an order that the property be sold – whether his Honour erred – where no evidence that his Honour proposed the order ultimately made during proceedings – where neither party afforded opportunity to make submissions in respect of transfer of the property to the mother – where appeal allowed in respect of this ground.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981(Cth)
Family Law Rules 2004 (Cth)

Allesch v Maunz (2000) 203 CLR 172
AMS v AIF (1999) 199 CLR 160
Bennett & Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Collu & Rinaldo [2010] FamCAFC 53
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
MRR v GR (2010) 240 CLR 461
Puttick v Tenon Ltd (2008) 238 CLR 265
Sigley v Evor (2011) 44 Fam LR 439
Taylor & Barker (2007) FLC 93-345

APPELLANT:

Ms Benworth

RESPONDENT:

Mr Benworth

FILE NUMBER:	SYC	8541	of	2007
APPEAL NUMBER:	EA	47	of	2011

DATE DELIVERED:

7 March 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Strickland and Murphy JJ

HEARING DATE:

22 September 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 May 2011

LOWER COURT MNC:

[2011] FamCA 328

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr M Kearney

SOLICITOR FOR THE APPELLANT:

Reid Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms L Judge

SOLICITOR FOR THE RESPONDENT:

Goldrick Farrell Mullan Solicitors

Orders

The appeal be allowed in part.
Orders 6(c) and 19 to 22 inclusive of the Orders made by Rose J on 13 May 2011 be set aside.
The issue of the number of consecutive nights during which the child shall spend time with his father during the school holiday time ordered by Rose J be remitted for re-hearing by a judge of the Family Court of Australia.
The issue of the terms of the orders affecting the property situate at and known as … J Street, London in the United Kingdom be remitted for re-hearing by a judge of the Family Court of Australia.
The appeal otherwise be dismissed.
Each of the appellant and the respondent shall, within 21 days of the date of these…

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

Case: [2012] FamCAFC 32
Decision Date: 7 March 2012

CaseChat Overview and Summary

The case of Benworth & Benworth involved an appeal concerning the relocation of a child to London and the transfer of a property in London. The mother sought to relocate to London with the parties' child, but the trial judge refused her application. The appeal raised several issues, including whether the trial judge erred in making orders regarding the child's time over the school holidays and in ordering the transfer of the London property to the appellant. The mother argued that the trial judge did not adequately consider the child's best interests in making the holiday time orders, and that he did not afford the parties an opportunity to make submissions on the transfer of the London property. The appeal was partially allowed, with the court setting aside certain orders and remitting the issues of the holiday time and the property orders for re-hearing. The court found that the trial judge's reasons did not make explicit how he determined that the holiday time orders were in the child's best interests, and that he did not propose the property order during the proceedings.

The court considered the grounds of appeal raised by the mother, which included the trial judge's failure to adequately consider the child's best interests in making the holiday time orders and the lack of opportunity for the parties to make submissions on the transfer of the London property. The court found that the trial judge's reasons did not make explicit how he determined that the holiday time orders were in the child's best interests, and that he did not propose the property order during the proceedings. The court held that the appeal should be allowed in respect of these grounds, as the trial judge had not adequately considered the child's best interests and had not afforded the parties an opportunity to make submissions on the transfer of the London property. The court also found that the appeal should be dismissed in all other respects.

Orders

Orders of the court

The appeal be allowed in part.

Orders 6(c) and 19 to 22 inclusive of the Orders made by Rose J on 13 May 2011 be set aside.

The issue of the number of consecutive nights during which the child shall spend time with his father during the school holiday time ordered by Rose J be remitted for re-hearing by a judge of the Family Court of Australia.

The issue of the terms of the orders affecting the property situate at and known as … J Street, London in the United Kingdom be remitted for re-hearing by a judge of the Family Court of Australia.

The appeal otherwise be dismissed.

Each of the appellant and the respondent shall, within 21 days of the date of these Orders file with the Appeals Registrar, Sydney, and serve on the other party, written submissions as to the issue of the costs of this appeal.

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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