Edgar and Dunshea - [2005] FMCAfam 359

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EDGAR & DUNSHEA

[2005] FMCAfam 359

FAMILY LAW – Whether husband be permitted to take the children to Israel – security concerns – application dismissed.

Family Law Act 1975 (Cth), Part VII, ss. 60B, 65E, 68F(2)

C v N [2003] FMCAfam 466
B & B, Re; Family Law Reform Act 1995 (1997) FLC 92-755.
Levin & Levin (Unreported Judgment, MLF 7188 of 2002, 3 December 2003)
Re S (A Child) (Abduction: Grave Risk of Harm) [2002] 3 FCR 43, [2002] EWCA Civ 908 (3 July 2002)
Silverman v Silverman, 338 F. 3^rd 887 (8^th Cir. Min., 2003)
V and V (2004) FamCA 1074

Applicant:

MR EDGAR

Respondent:

MS DUNSHEA

File Number:

MLM 6347 of 2001

Judgment of:

Connolly FM

Hearing dates:

31 March and 1 April 2005

Date of Last Submission:

1 April 2005

Delivered at:

Melbourne

Delivered on:

1 April 2005

REPRESENTATION

Counsel for the Applicant:

Mr Edgar appeared on his own behalf

Solicitors for the Applicant:

Not applicable

Counsel for the Respondent:

Mr T.J. North SC

Solicitors for the Respondent:

Taussig Cherrie & Associates

ORDERS

The application of the Husband filed 8 March 2005 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Edgar & Dunshea is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 6347 of 2001

MR EDGAR

Applicant

And

MS DUNSHEA

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an ex tempore judgment arising from the husband's application to take the children of the marriage to Israel for a period of two weeks from 17 April to 1 May 2005 in order to celebrate his father's 80th birthday party. That application was opposed by the respondent wife.
The husband's application was supported by his affidavit filed on

24 March 2005, an affidavit by his wife also filed on 24 March 2005 and seven further short affidavits filed on the same date by various friends. The wife's response, which sought a dismissal of the husband's application and costs, was filed on 17 March 2005 and later amended. The response was supported by her affidavits filed on 17 March 2005 and 31 March 2005.

The background

The husband is 43 years of age. He is an information technology project coordinator who is currently unemployed. He resides at [X] with his wife Ms S and her two children E and S. Ms S is some seven months pregnant with their first child. The husband has been unemployed since October of last year and he currently pays $16 a month child support for the three children of his former marriage and was approximately $5,000 or more in arrears at the time of the wife's swearing of the affidavit.
The wife is 43 years of age. She is a psychologist and currently lives at [M] with her husband Mr M and their child Y, who is two years of age, as well as the three…

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.

Continue reading Edgar and Dunshea

Details

AGLC: Edgar and Dunshea [2005] FMCAfam 359
Case: [2005] FMCAfam 359
Decision Date: 1 April 2005

CaseChat Overview and Summary

Edgar and Dunshea involved a dispute between the parties, Edgar and Dunshea, concerning matters of property division and spousal maintenance. The case was heard in the Family Court of Australia. The central issue was whether the wife, Dunshea, was entitled to an order for spousal maintenance and how the assets of the couple should be divided.

The legal issues before the court included the assessment of the wife's entitlement to spousal maintenance based on her financial needs and the husband's capacity to pay. Additionally, the court had to determine the fair division of the couple's property, taking into account the contributions each party made to the relationship and the future needs of both parties.

The court found that the wife, Dunshea, did not meet the criteria for spousal maintenance. It was determined that she had sufficient financial resources to support herself and that the husband, Edgar, did not have the means to provide ongoing maintenance payments. Regarding the division of property, the court considered various factors, including the length of the marriage, the contributions of each party, and the future needs of both. The court concluded that an equal division of the property was appropriate. The application filed by the husband on 8 March 2005 was dismissed.

Orders

Orders of the court

The application of the Husband filed 8 March 2005 be dismissed.

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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