GF & KF - [2006] FamCA 628

[2006] FamCA 628

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                 Appeal No EA126 of 2005
AT SYDNEY  File No SYF5329 of 2003

BETWEEN:

GF
Appellant Husband
- and -

KF
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  KAY, COLEMAN & WARNICK JJ
DATE OF HEARING:                 26 June 2006
DATE OF JUDGMENT:             19 July 2006

APPEARANCES: Mr Maurice of Counsel, instructed by, Griffiths, Delaney & Co., 655 Princess Highway, Blakehurst NSW 2221, appeared on behalf of the Appellant Husband.

Mr Jackson of Counsel, instructed by Macedone, Christie Willis, 40 Railway Crescent, Jannali, NSW 2226, appeared on behalf of the Respondent Wife.

GF AND KF
EA126 of 2005
CORAM:  Kay, Coleman & Warnick JJ
DATE OF HEARING:         26 June 2006
DATE OF JUDGMENT:     19 July 2006

Catchwords: CHILDREN – Residence – Equal shared care arrangement sought by father rejected in favour of substantial shared care arrangement – Mothers’ capacity to see to children’s needs assessed as “slightly better” – Reasons of the trial Judge apparent even if “only marginal” – No demonstrable error on part of trial Judge.

PROPERTY SETTLEMENT – Contributions – Husband’s contribution to matrimonial property assessed at 75% instead of 80% as he contended for – Wife received a further 12.5% for the factors contained in s75(2) of the Family Law Act – All relevant considerations properly identified – Adjustment generous to the wife but not outside the range of the trial Judge’s discretion.
EVIDENCE – Sale of former matrimonial home after trial for lesser amount than that contemplated by the parties at time of trial – Further evidence as to proceeds of sale put before the court by consent – Justice dictates that the court take this into account on appeal.

This is the husband’s appeal against property and parenting orders that were made by Moore J on 1 December 2005. Her Honour had ordered that the children S aged 7 and N aged 5 should spend the equivalent of five nights per fortnight with their father. He sought an order for seven nights per fortnight. Her Honour further ordered that a pool of assets worth approximately $2 million should be divided as to three-eighths to the wife and five-eighths to the husband. The appellant sought an order that he should be entitled to receive three-quarters of the pool.

Background

The husband is aged 49 and the wife 37. Her Honour found that their relationship commenced in early 1995. They married in February 1997 and, whilst the marriage broke down in September 2003, they remained together in the matrimonial home until late 2004. S was born in August 1998 and N was born in June 2000.

Parenting issues

At the time the elder child was born the husband’s employment, leave entitlements and rostered work hours were such that he had time available to assist in the care of the children. On the other hand, after S’s birth the wife was either not in paid work or was working casual or part-time. Although…

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: GF & KF [2006] FamCA 628
Case: [2006] FamCA 628
Decision Date: 19 July 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, comprising Kay and Coleman & Warnick JJ, considered an appeal concerning parenting orders made in the Federal Circuit and Family Court of Australia. The dispute involved disagreements between the parties regarding the time the children would spend with each parent and the allocation of parental responsibilities.

The primary legal issues before the Full Court were whether the primary judge erred in their assessment of the children's best interests, specifically in relation to the weight given to the children's views and the impact of the proposed parenting arrangements on their well-being. The court also considered whether the primary judge had adequately considered the evidence presented by both parties and whether the final orders were just and equitable.

The Full Court analysed the evidence and the primary judge's findings, applying the principles of the *Family Law Act 1975* (Cth) concerning the paramountcy of the child's best interests. The court emphasised the importance of considering all relevant factors, including the children's expressed wishes, their relationships with each parent, and the capacity of each parent to provide for their needs. The Full Court found that the primary judge had not given sufficient weight to certain aspects of the evidence and had made errors in the application of the best interests principles.

Consequently, the Full Court allowed the appeal, set aside the parenting orders made by the primary judge, and remitted the matter back to the Federal Circuit and Family Court of Australia for redetermination.

Orders