Chaborne & Chaborne (No 2)

Case [2020] FamCAFC 112

FAMILY COURT OF AUSTRALIA

CHABORNE & CHABORNE (NO. 2) [2020] FamCAFC 112

FAMILY LAW – APPEAL – PARENTING – Where the grounds of appeal do not challenge or relate to all of the orders the subject of the appeal – Where no basis is demonstrated sufficient to overturn the Magistrate’s discretionary decision because of any issue of weight – Where no error by the Magistrate is demonstrated – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where the father appeals final property settlement orders – Where the father contends that the Magistrate’s assessment of the parties’ contributions, s 75(2) factors and overall decision was outside the reasonable exercise of discretion – Weight challenges – Where the Magistrate’s findings of fact were not challenged – Where this Court cannot substitute the Magistrate’s decision for its own – Where the grounds of appeal lack merit – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where if the appeal was dismissed it was agreed that the father pay the mother’s costs of and incidental to the appeal fixed in the sum of $12,000 – Costs ordered in favour of the mother as agreed payable within 90 days of the date of orders being made.
Family Law Act 1975 (Cth) ss 60CC, 69ZX(3), 75(2)
Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47
Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124
Chaborne & Chaborne [2019] FamCAFC 125
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hall and Hall (1979) FLC 90-713; [1979] FamCA 73
Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177
Mims & Green and Green (2008) FLC 93-359; [2008] FamCAFC 13
S S Hontestroom v S S Sagaporack [1927] AC 3
APPELLANT: Mr Chaborne
RESPONDENT: Ms Chaborne
INDEPENDENT CHILDREN’S LAWYER: Legal Aid WA
FILE NUMBER: PTW 2846 of 2017
APPEAL NUMBER: WEA 44 of 2018
DATE DELIVERED: 12 May 2020
PLACE DELIVERED: Adelaide
PLACE HEARD: Perth
JUDGMENT OF: Strickland,
Ainslie-Wallace & O’Brien JJ
HEARING DATE: 14 October 2019
LOWER COURT JURISDICTION: Magistrates Court of Western Australia
LOWER COURT JUDGMENT DATE: 12 November 2018
LOWER COURT MNC: [2018] FCWAM 146

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Anderson
SOLICITOR FOR THE APPELLANT: Kerr Fels Divorce & Family Lawyers
COUNSEL FOR THE RESPONDENT: Ms McShera
SOLICITOR FOR THE RESPONDENT: Anthony R Clarke & Associates
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Martin
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid WA

Orders

  1. The appeal be dismissed.

  2. The appellant father pay the costs of the respondent mother of and incidental to the appeal fixed in the sum of $12,000 and payable within 90 days of the date hereof.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chaborne & Chaborne (No. 2) has been approved by the Chief Justice…

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AGLC
Chaborne & Chaborne (No 2) [2020] FamCAFC 112
Case
[2020] FamCAFC 112
Decision Date

CaseChat Overview and Summary

Chaborne & Chaborne (No 2) involved an appeal by the father against decisions made by a Magistrate in family law matters concerning parenting and property. The father challenged the parenting orders, arguing that the Magistrate had not properly considered certain factors. He also contested the property settlement, asserting that the Magistrate had erred in assessing the parties' contributions and in applying the relevant s 75(2) factors.

The court examined whether the grounds of appeal provided a sufficient basis to challenge the Magistrate’s decisions. In relation to the parenting orders, the court found that the father's grounds of appeal did not sufficiently challenge the Magistrate's discretionary decisions or relate to all of the orders. The court also determined that no basis existed to overturn the Magistrate's decision due to any perceived issue of weight or error. Regarding the property settlement, the court held that the father's challenges did not relate to the Magistrate's findings of fact and the grounds of appeal lacked merit, as the Magistrate's decisions were within the reasonable exercise of discretion.

The appeal was dismissed in its entirety. The court further ordered the father to pay the mother's costs of and incidental to the appeal, fixed in the sum of $12,000, payable within 90 days of the date of the orders.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The appellant father pay the costs of the respondent mother of and incidental to the appeal fixed in the sum of $12,000 and payable within 90 days of the date hereof.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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