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
JUDGMENTOF 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…
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
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.