Fosbery & Fosbery - [2009] FamCAFC 51

FAMILY COURT OF AUSTRALIA

FOSBERY & FOSBERY

[2009] FamCAFC 51

FAMILY LAW – APPEAL – CHILDREN – from decision of Federal Magistrate – lack of reasons – with whom a child lives – child’s school – appeal dismissed

FAMILY LAW – APPEAL – PROPERTY– from decision of Federal Magistrate – error of law in excluding certain sums from the pool – contributions of the parties – error of calculation in making adjustment in wife’s favour – inadequate adjustment with respect to Family Law Act 1975 (Cth) s 75(2) factors – appeal dismissed

FAMILY LAW – APPEAL – COSTS – each party to bear their own costs

Family Law Act 1975 (Cth)

Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
C and C [1998] FamCA 143
Chorn and Hopkins (1998) FLC 93-204
Gollings and Scott (2007) FLC 93-319
H v W (1995) FLC 92‑598
Kowaliw & Kowaliw (1981) FLC 91-092
Omacini and Omacini (2005) FLC 93-218
Phipson & Phipson [2009] FamCAFC 28
R v R: Children's Wishes (2000) FLC 93‑000
R v R: Children's Wishes (2002) FLC 93-108
Townsend & Townsend (1995) FLC 92-569
Wilde & Wilde (2007) FamCA 1044

APPELLANT

Ms Fosbery

RESPONDENT:

Mr Fosbery

FIRST INSTANCE FILE NUMBER:	BRM	9841	of	2006
APPEAL NUMBER:	NA	23 & 26	of	2008

DATE DELIVERED:

30 March 2009

PLACE DELIVERED:

Hobart

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Finn & Benjamin JJ

HEARING DATE:

8 August 2008

LOWER COURT JURISDICTION:

LOWER COURT JUDGMENT DATE:

LOWER COURT MNC:

Federal Magistrates Court

Reasons delivered 8 February 2008, property orders made 20 February 2008 and parenting orders made 7 March 2008

[2008] FMCAfam 95

REPRESENTATION

COUNSEL FOR THE APPELLANT	Mr Kearney of Counsel
SOLICITOR FOR THE APPELLANT	Hirst & Co.
COUNSEL FOR THE RESPONDENT:	Mr Galloway of Counsel
SOLICITOR FOR THE RESPONDENT	Parker Family Law

Orders

That the appeal against the orders with respect to property settlement made on 20 February 2008 be dismissed.
That the appeal against the parenting orders made on 7 March 2008 be dismissed.
That there be no order for costs in relation to the appeals.

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

FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: NA 23/2008 & NA 26/2008
FILE NUMBER: BRM 9481/2006

Ms Fosbery

Appellant

and

Mr Fosbery

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Fosbery, the wife, appeals from property and parenting orders made by Federal Magistrate Baumann on 20 February 2008 and on 7 March 2008, respectively, reasons having been delivered on 8 February 2008.
The wife and the husband, Mr Fosbery, are aged in their mid forties and were married in 1985, they separated in August 2006. They have three children; however, orders were only made in respect of their youngest child, M, aged nine at the time of the trial. His elder siblings live with the husband and were under 18 at…

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

AGLC: Fosbery & Fosbery [2009] FamCAFC 51
Case: [2009] FamCAFC 51
Decision Date: 30 March 2009

CaseChat Overview and Summary

In the Family Court of Australia, Fosbery and Fosbery appealed against a decision made by a Federal Magistrate concerning the care and custody of their children, as well as the division of their matrimonial property. The appellants sought to overturn the parenting orders that determined where their children would reside and attend school, and also contested the property settlement, alleging errors in the calculation of the property pool and the resulting distribution. The appeal was subsequently dismissed by the court.

The legal issues before the court included whether the Federal Magistrate had erred in making the parenting orders without providing adequate reasons, particularly concerning the children’s schooling. The court also had to determine if there were any errors in law or calculation in the property settlement. Specifically, the appellants argued that certain sums had been wrongly excluded from the property pool and that the adjustments made in favour of the wife were inadequate, given the statutory factors outlined in the Family Law Act 1975. The court examined these arguments and found that the magistrate’s decision was sound and did not contain any legal errors warranting an appeal.

The court held that the Federal Magistrate’s decision to not provide detailed reasons for the parenting orders was not a ground for appeal, as the orders were based on the best interests of the children. The court found no error in the magistrate’s consideration of the children’s schooling, affirming that the decision was in line with established principles and authorities. Regarding the property settlement, the court found no legal errors in the exclusion of certain sums or in the overall distribution, and the adjustment made in the wife’s favour was deemed adequate in light of the relevant factors. Consequently, the appeal against both the parenting and property orders was dismissed.

The final orders of the court were that the appeals against both the property settlement and parenting orders were dismissed, and that each party bear their own costs in relation to the appeals. This decision underscores the importance of the magistrate's discretion in family law matters and the limited scope for appellate review in the absence of clear legal error.

Orders

Orders of the court

That the appeal against the orders with respect to property settlement made on 20 February 2008 be dismissed.

That the appeal against the parenting orders made on 7 March 2008 be dismissed.

That there be no order for costs in relation to the appeals.

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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