CJT and Anor & DAW & DJW - [2006] FamCA 270

[2006] FamCA 270

JFCJTKDT

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT PARRAMATTA

Appeal No. EA 48 of 2005
File No. PAM 5095 of 2002

IN THE MATTER OF:

CJT
KDT

Appellants

- and -

DAW

1^st Respondent & Cross Appellant/Wife

- and -

DJW

^2nd Respondent/Husband

REASONS FOR JUDGMENT

BEFORE:  JUSTICE I R COLEMAN
HEARD:  17^th day of March 2006
JUDGMENT:  13^th day of April 2006

APPEARANCES: Mr Roberts of Counsel, (instructed by David Archer & Associates, 2 Mount Street, Glenbrook NSW 2774) appeared on behalf of the appellants.

Mr Kenny of Counsel, (instructed by Lamrocks Solicitors, 1^st Floor, Cnr Henry & Lawson Street, Penrith NSW 2750) appeared on behalf of the first respondent wife.

There being no appearance by or on behalf of the 2^nd respondent husband.

Name of Appeal CJT, KDT & DAW & DJW

Appeal Number EA 48 of 2005

Date of Appeal Hearing 17^th day of March 2006

Date of Judgment 13^th day of April 2006

Bench Coleman J

Catchwords: Appeal against orders setting aside sale of property by the husband to the appellants and providing for the resale of the property, repayment of purchase monies to the appellants and division of the balance of the proceeds between the husband and wife.
Appellants contented that contrary to the learned Federal Magistrate’s finding it was not the sale of the property to the appellants which defeated the wife’s ability to recover her entitlement, but rather the husband’s actions consequent upon receiving the proceeds from such sale – Held that on Federal Magistrate’s finding as to valuation of the property at the time of its sale it was not open to his Honour to conclude that the sale defeated an anticipated order as required by s 106B.
Cross appeal against finding with respect to value of property – Held that the reasoning process with respect to valuation was not readily discernible.

Appeal allowed – matter remitted to Federal Magistrates Court.

Costs certificates.

By Amended Notice of Appeal filed 19 August 2005 the appellants appealed against orders made by Federal Magistrate Scarlett on 30 March 2005 in proceedings between the wife and the husband in which proceedings the appellants had been joined.
The orders of the learned Federal Magistrate which the appellants challenged set aside a sale by the husband to the appellants of a property in Sydney’s West and, consequent thereupon, ordered the sale of the property and, after re-payment to the appellants of the purchase monies paid by them for the property, and a modest additional sum, the division of the remaining proceeds of sale between the husband and wife.
The wife has resisted the appellants’ appeal and sought to maintain the Federal Magistrate’s orders. By Notice of Appeal filed 23 September 2005 the wife, in effect, cross appealed, such cross appeal being solely limited to the learned Federal Magistrate’s conclusion as to the value of the Western Sydney property at the time of its…

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

Case: [2006] FamCA 270
Decision Date: 13 April 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning parenting orders made by Coleman J. The appeal was brought by the father, CJT, and the mother, DJW, against orders made in relation to their child, DAW. The dispute centred on the arrangements for DAW's future care, welfare, and development.

The primary legal issues before the Full Court were whether Coleman J erred in her assessment of the evidence and in her application of the relevant principles under the *Family Law Act 1975* (Cth), particularly concerning the paramountcy of the child's best interests. The appellants contended that the orders made did not adequately reflect the evidence presented regarding their respective capacities and the child's needs, and that the judge had failed to properly consider certain aspects of the evidence.

The Full Court analysed the judgment of Coleman J, reviewing the evidence that had been before the primary judge and the reasons provided for the final orders. The Court affirmed the principles that the best interests of the child are the sole consideration in parenting matters and that a judge is entitled to weigh the evidence as they see fit. The Full Court found no error in the primary judge's factual findings or her application of the law, concluding that the judge had properly considered all relevant factors and that the orders made were within the scope of her discretion.

The appeal was dismissed, and the parenting orders made by Coleman J were affirmed.

Orders