CHILDS & CHILDS

[2010] FamCAFC 35

FAMILY COURT OF AUSTRALIA

CHILDS & CHILDS [2010] FamCAFC 35

FAMILY LAW - APPEAL – PROPERTY – Whether the trial Judge erred in finding the onus of proof on the husband to prove his initial capital contributions – Where comments about the onus of proof were ultimately irrelevant – No error established in overall consideration of initial contributions – Whether the trial Judge erred in the exercise of his discretion in s 75(2) adjustment by failing to give appropriate weight to husband’s health and lack of earning capacity – Where the trial Judge accepted the husband’s evidence about his health – Where the trial Judge found that the husband had only modest capacity for employment in the future – Where the trial Judge made an adjustment in the husband’s favour – Where the trial Judge did not overlook any relevant matter nor gave inappropriate weight to the husband’s age, health or employment capacity – No appealable error – Whether the trial Judge erred in determining that the wife should retain an investment property or by failing to order the sale of that property – Where the trial Judge identified that the question of the assets to be retained by each party was in issue – Where the trial Judge dealt with the question of who should retain the property as a discrete issue – Where the trial Judge’s reasons disclose a careful and balanced consideration of the issue – No appealable error.

FAMILY LAW - APPEAL – STAY – Where the trial Judge did not dismiss the husband’s application for a stay of his orders but stood the application over – Where the wife appealed the refusal to dismiss the husband’s stay application – An order for a stay or an order dismissing or refusing a stay is a highly discretionary matter – Where the discretion of the trial Judge miscarried in taking into account an irrelevant matter – Where the trial Judge erred in standing the stay application over.

FAMILY LAW - COSTS – OF APPEAL – Where the husband wholly unsuccessful in his appeal – Where the husband has capacity to meet an order for costs – Where it is appropriate that the husband pay the wife’s costs of an incidental to the appeal – OF STAY APPEAL – Where the wife sought a costs certificate in the event that costs were not ordered against the husband – Where appropriate that there be no departure from s 117(1) of the Family Law Act 1975 – Wife granted costs certificate in respect of the stay appeal.

Family Law Act 1975 (Cth) – s 75(2)
Federal Proceedings (Costs) Act 1981 (Cth)

Currie v Dempsey & Ors (1967) 69 SR (NSW) 116
Gull & Gull (Stay Application) [2009] FamCAFC 104
House v The King (1936) 55 CLR 499

Butterworths, Cross on Evidence Australian Edition, vol 1 (at 122-11-09)

FILE NUMBER: PAF 1555 of 2006

APPEAL NUMBER: EA 75 of 2009

APPELLANT: Mr Childs

RESPONDENT: Ms Childs

APPEAL NUMBER: EA 100 of