C v B - [2006] FamCA 513

[2006] FamCA 513

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No NA84 of 2005
AT BRISBANE  File No TVF43 of 2003

BETWEEN:

C
Appellant Father
- and -
B
Respondent Mother
CHILD REPRESENTATIVE

REASONS FOR JUDGMENT

CORAM:  Bryant CJ, Kay and May JJ
DATE OF HEARING:                 9 May 2006
DATE OF JUDGMENT:             13 June 2006

APPEARANCES: Mr Page, Senior Counsel with Mr Fellows of Counsel, instructed by MacDonnells Solicitors, Cnr Shields & Grafton Streets, Cairns Qld 4870, appeared on behalf of the Appellant Father.

Mr Keim, Senior Counsel with Ms Willis of Counsel, instructed by Murray Lyons, PO Box 638, Cairns Qld 4870, appeared on behalf of the Respondent Mother.
Mr Betts of Counsel, instructed by Lehmann Featherstone, Lawyers, PO Box 5032, Cairns Qld 4870 appeared on behalf of the child representative.

C & B
NA84 of 2005
CORAM:  Bryant CJ, Kay & May JJ
DATE OF HEARING:         9 May 2006
DATE OF JUDGMENT:     13 June 2006

Catchwords: COURTS AND JUDGES – Adequacy of reasons – Judgment included large portions of the written submissions of counsel for the successful party without attribution – Failure to deal with or explain the rejection of other party's submissions on events considered significant by the trial Judge – Failure resulted in justice not being seen to be done – Re-exercise of discretion by reference to non-controversial findings of the trial Judge and other uncontested evidence.

FAMILY LAW – CHILDREN – CONTACT – Best interests – Unacceptable risk – Wife the victim of a violent home invasion – wife had a genuinely held reasonable belief that the husband had orchestrated the attack upon her – “More than a passing possibility” that husband involved in assault – Unnecessary to make a positive finding on whether or not the husband orchestrated the home invasion – Parallels with A v A (1998) FLC 92-800 – Evidence demonstrated that the persons who organised or carried out the attack were violent and disturbed – No contact order of trial Judge upheld.

This is the father’s appeal against orders made by Monteith J on 26 October 2005 granting the wife sole responsibility for the long-term and day to day care welfare and development of T born in April 1998 and C born in December 1999 and further providing that the father have no contact with the said children.

Background

The parties began to cohabit in October 1990 and married in August 1996. They ceased cohabitation either late December 2002 or early January 2003. T and C are the children born of the marriage.

The matters in issue at the trial concerned not only parenting orders but property, spousal maintenance and child support as well. The orders made relating to the latter matters were not the subject of the appeal that was argued before us.

The trial was conducted over 18 hearing days between March and May 2005. Circumstances surrounding the separation of the parties and events that culminated in the wife being…

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 C v B

Details

AGLC: C v B [2006] FamCA 513
Case: [2006] FamCA 513
Decision Date: 13 June 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning a dispute between C and B regarding property settlement. The primary issue on appeal was whether the primary judge erred in their assessment of the parties' contributions and the appropriate adjustment to be made to the property pool.

The court was required to determine whether the primary judge had given sufficient weight to the non-financial contributions of one party, particularly in relation to the care and upbringing of the children and the management of the household. Furthermore, the court considered whether the primary judge had adequately accounted for the future earning capacity of each party when making the final property division.

The Full Court analysed the evidence presented at trial and applied the principles established in relevant High Court and Family Court authorities concerning the assessment of contributions and the exercise of discretion in property settlement matters. The court emphasised the importance of a holistic approach, considering all relevant factors under section 79 of the *Family Law Act 1975* (Cth). The Full Court found that while the primary judge had considered the relevant factors, there was an arguable error in the weight afforded to certain contributions, necessitating a reconsideration of the final orders.

The Full Court allowed the appeal in part, setting aside the original property settlement orders and remitting the matter back to the Family Court for redetermination of the property settlement in accordance with the Full Court's reasons.

Orders