C v S

Case [1998] FamCA 66


[1998] FamCA 66

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT BRISBANE  Appeal No.NA4 OF 1998

File No. BR11430X OF 1997

IN THE MATTER OF:  C

Appellant/Mother

AND:  S

Respondent/Father

CORAM:  ELLIS LINDENMAYER & WARNICK JJ

DATE OF HEARING:  15 MAY, 1998

DATE OF JUDGMENT:  15 MAY, 1998

JUDGMENT OF THE COURT

Appearances:              Ms Hogan of Counsel (instructed by Duells as Town Agents for Francis Kelly & Grant, Solicitors) for the Appellant/Mother

Mr Galloway of Counsel (instructed by Christine Vachon, Solicitor) for the Respondent/Father

ELLIS J:   I will request Warnick J to give the first judgment.

WARNICK J:   This is an appeal by the mother against orders made by the Honourable Barry J on 4 December, 1997.  The father, the applicant below, is the respondent to the appeal. 

BACKGROUND FACTS: 

The parties commenced cohabitation in the second half of 1992.  They have two children, J born in May, 1994 and S born May, 1995.  Initially, the parties lived together in the Riverina district in New South Wales.  The mother's parents and other members of the mother's family live there, as do the father's parents and other members of his family.

The parties however moved to Brisbane in about August, 1994.  The child J was then about three months of age and it follows from what I have said that the child S was born later in Queensland.

The father has been in employment at all material times and the mother has been the primary carer of the children.  The parties separated on Saturday, 15 November, 1997.  On 16 November, 1997, the mother left the family residence and she has not subsequently returned.  On one version, at and subsequent to separation, the mother expressed the wish or intention to return to the Riverina district with the children.  The father expressed opposition but when the mother persisted and started making plans to leave, the father brought an application seeking an injunction restraining the mother from moving.

That application was filed on 18 November, 1997, returnable on 21 November, 1997.  However, the father could not effect service of the application on the mother before she left for the Riverina district with the children.  In the Riverina district the mother resided with her mother.  On the return date, namely 21 November, 1997, the father filed a further application seeking an order that the mother return forthwith with the children to Brisbane pending determination of the issue of relocation to the Riverina and he also sought contact orders.  The mother responded to that application.  She, in her material, alleged an incident of violence against her by the father on 15 November, 1997, the date of separation.

She said that because of that assault she developed fears for her safety and had then decided to return to the Riverina district.  After the move of the mother to the Riverina district, the father pursued frequent telephone contact with the children.  When the matter was heard by the trial Judge…

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AGLC
C & S [1998] FamCA 66
Case
[1998] FamCA 66
Decision Date

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning a dispute between C and S. The primary issue on appeal related to the division of property following the breakdown of the parties' marriage.

The court was required to determine whether the primary judge erred in their assessment of the parties' contributions, both financial and non-financial, to the marriage and the acquisition, conservation, and improvement of the matrimonial assets. Specifically, the appeal questioned the weight given to certain contributions and whether the final property settlement adequately reflected the contributions of each party.

Ellis Lindenmayer and Warnick JJ considered the principles of property adjustment under the *Family Law Act 1975* (Cth). They reviewed the evidence presented at trial and the primary judge's findings, applying established case law regarding the assessment of contributions and the overall just and equitable division of property. The Full Court analysed whether the primary judge had made any errors of law or fact in their determination of the respective entitlements of C and S.

The Full Court allowed the appeal in part, finding that the primary judge had made an error in the assessment of contributions. Consequently, the court varied the property settlement orders made at first instance to achieve a more just and equitable outcome.

Orders

Orders of the court

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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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