Christian & Donald

[2008] FamCAFC 44

FAMILY COURT OF AUSTRALIA

CHRISTIAN & DONALD [2008] FamCAFC 44

FAMILY LAW - APPEAL – PROPERTY - Where trial Judge dismissed husband’s application to set aside orders for property settlement – Whether trial Judge erred in failing to properly consider husband’s application to set aside orders for property settlement pursuant to s 79A of the Family Law Act 1975 (Cth) – Where husband alleged a miscarriage of justice by way of suppression of evidence of the children’s wishes to live with him – Where trial Judge noted the prior property orders specifically took into account the children’s stated wishes - Where no claim under s 79A(1)(b) and (c) raised at trial – Husband’s case on appeal was fundamentally different to that at trial – Whether trial Judge failed to consider the evidence that the children had moved to live with husband - Whether trial Judge erred in finding that the children’s move to live with the husband constituted “circumstances of an exceptional nature” but was within “the ordinary vicissitudes of life” – Discussion of Simpson & Hamlin (1984) FLC 91-576 - Under s 79A(1)(d), the husband had to establish both “exceptional circumstances” and “hardship” – No error by trial Judge. Whether trial Judge erred in failing to deal with application to return youngest child’s belongings to husband – Where Trial Judge not required to set aside or vary earlier property orders – Where husband did not establish what items of the child remained with the wife – No error by trial Judge.

FAMILY LAW - APPEAL - CHILDREN – Whether trial Judge erred in refusing to discharge order in respect of child aged 16 years and/or to vary contact changeover arrangements for youngest child - Where trial Judge found variations sought by the husband not in the children’s best interests - Where trial Judge gave sound reasons for refusing application - No error by trial Judge.

FAMILY LAW - APPEAL – APPLICATION FOR LEAVE TO APPEAL – CHILD SUPPORT DEPARTURE – Whether trial Judge erred in upholding the Child Support Registrar’s application of a prior Full Court’s decision in respect of the husband’s child support assessment – Where no statutory basis for relief as sought by the husband – Where trial Judge’s findings on the departure application were open to her – Leave to appeal refused.

FAMILY LAW - APPEAL – ADULT CHILD MAINTENANCE – Where trial Judge refused husband’s application for reimbursement from wife of child’s tertiary education expenses and weekly maintenance by way of adult child maintenance – Where trial Judge held that the husband failed to demonstrate that maintenance was “necessary” to complete the child’s education – Where expenditure had already occurred - Cosgrove & Cosgrove (1996) FLC 92-700 followed - Trial Judge erred in failing to consider the evidence in relation to the “necessity” of maintenance to complete child’s education – Full Court re-exercised the discretion and concluded the husband failed to establish a “necessity” for payment of adult child maintenance by the wife - Husband…