Brangus & Brangus - [2007] FamCA 437

FAMILY COURT OF AUSTRALIA

BRANGUS & BRANGUS

[2007] FamCA 437

FAMILY LAW –– APPEAL AGAINST EXERCISE OF DISCRETION IN RELATION TO CONTACT – Challenge to Federal Magistrate’s consideration of object and principles of Part VII unsuccessful - challenge to weight given to children’s wishes opposing contact unsuccessful – no aspect of exercise of discretion having been shown to be erroneous appeal dismissed.

PROPERTY – CROSS-APPEAL – Complaint that the Federal Magistrate erred in failing to find husband beneficially owned overseas assets having been critical of the husband’s credibility unsuccessful – contention that the Federal Magistrate had impermissibly reversed the onus of proof from the husband to the wife in relation to the husband’s alleged overseas assets unsuccessful – Section 75(2) adjustment in favour of husband beyond ambit of reasonable exercise of discretion in circumstances of case which included deferred sale of former matrimonial home occupied by wife and children - cross-appeal allowed – discussion of terms of re-hearing in Federal Magistrate’s Court in circumstances where Federal Magistrate’s conclusion with respect to contribution entitlements of the parties not challenged – Part VIII proceedings remitted for re-hearing without restriction – costs certificates including costs certificates with respect to re-hearing in the Federal Magistrate’s Court.

Family Law Act of 1975 (Cth)

Part VII Sections 60B, 65E, and 68F(2), Part VIII Section 79

Family Law Amendment (Shared Parental Responsibility) Act 2006

Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621

House v The King (1936) 55 CLR 499

Gronow v Gronow (1979) 144 CLR 513

I v I (1995) FLC ¶92-604

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 at 279

Bennett and Bennett (1991) FLC 92-191.

Norbis v Norbis (1986) 161 CLR 513

CDJ v VAJ (1998) 197 CLR 172

Allesch v Maunz (2000) 203 CLR 172

APPELLANT:

MR BRANGUS

RESPONDENT:	MS BRANGUS
CROSS-APPELLANT:	MS BRANGUS

RESPONDENT: MR BRANGUS

FILE NUMBER:

PAM

2756

2004

APPEAL NUMBER:

2006

DATE DELIVERED:

17 May 2007

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

Finn, Coleman and Boland JJ

HEARING DATE:

6 November 2006

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

4 May 2006

LOWER COURT MNC:

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr. M

COUNSEL FOR THE RESPONDENT:

Mr. S

INDEPENDENT CHILDREN’S LAWYER:

Ms D for the L A Commission

Orders

That the husband’s appeal in relation to children’s matters be dismissed.
That the wife’s cross-appeal with respect to orders for settlement of property be allowed.
That Orders 8 – 19 of 4 May 2006 be set aside.
That the proceedings with respect to settlement of property be remitted to the Federal Magistrates Court for re-hearing.
That the Court grants to the cross appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by…

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: Brangus & Brangus [2007] FamCA 437
Case: [2007] FamCA 437
Decision Date: 17 May 2007

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal and cross-appeal concerning orders made by a Federal Magistrate regarding children's contact and property settlement. The husband appealed against the Federal Magistrate's decisions concerning contact arrangements for the children, while the wife cross-appealed against the property settlement orders.

The primary legal issues before the Full Court were whether the Federal Magistrate had erred in their consideration of the objects and principles of Part VII of the *Family Law Act 1975* (Cth) and the weight given to the children's wishes in relation to contact. In the cross-appeal, the issues concerned whether the Federal Magistrate had erred in failing to find that the husband beneficially owned overseas assets, whether the onus of proof had been impermissibly reversed regarding these assets, and whether a section 75(2) adjustment in favour of the husband was beyond the reasonable exercise of discretion.

Regarding the husband's appeal on children's matters, the Full Court found no error in the Federal Magistrate's exercise of discretion, concluding that the Magistrate had properly considered the relevant legislative provisions and the children's stated wishes. Consequently, the husband's appeal was dismissed. However, the Full Court allowed the wife's cross-appeal concerning property settlement. The Court found that the Federal Magistrate's conclusion regarding the husband's alleged overseas assets was flawed, particularly in relation to the reversal of the onus of proof. Furthermore, the Court determined that the section 75(2) adjustment made in favour of the husband was not a reasonable exercise of discretion, especially given the circumstances of the deferred sale of the former matrimonial home.

The Full Court set aside the property settlement orders and remitted the matter for re-hearing in the Federal Magistrates Court. Costs certificates were granted to both parties in relation to the appeal and the new trial.

Orders

Orders of the court

That the husband’s appeal in relation to children’s matters be dismissed.

That the wife’s cross-appeal with respect to orders for settlement of property be allowed.

That Orders 8 – 19 of 4 May 2006 be set aside.

That the proceedings with respect to settlement of property be remitted to the Federal Magistrates Court for re-hearing.

That the Court grants to the cross appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.

That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by the respondent husband in relation to the appeal.

That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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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