GOLDMAN & GOLDMAN

Case [2018] FamCAFC 65

FAMILY COURT OF AUSTRALIA

GOLDMAN & GOLDMAN [2018] FamCAFC 65

FAMILY LAW – APPEAL – PARENTING – Whether the primary judge’s order for only a four week moratorium on the time the children spend with the wife was inconsistent with the expert evidence and was therefore erroneous – Where the order was open on the evidence – Whether the primary judge erred by placing insufficient weight on her findings of unacceptable risk – Where the point of the moratorium was to ameliorate the risk – Whether the primary judge should have made an order requiring the wife to complete treatment before the moratorium is lifted – Where the husband did not seek such an order at first instance, made no submissions in support of such an order to the primary judge, where the evidence did not support such an order and where no ground of appeal was directed to such a complaint – Adequacy of reasons – Appeal dismissed – Husband ordered to pay the costs of the wife and the Independent Children’s Lawyer.

FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge’s findings about the payment of the parties’ mortgage were erroneous – Where the findings were supported by the evidence – Whether the primary judge erred by omitting from the property pool a sum of money held by the wife’s solicitors on the basis that it was a loan from the wife’s parents – Where this finding was open on the evidence – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the evidence the husband seeks to adduce is controversial – Application dismissed.
Family Law Act 1975 (Cth) ss 75(2), 79(4)
Family Law Rules 2004 (Cth) Sch 3
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Blinko & Blinko [2015] FamCAFC 146
Calvin & McTier (2017) FLC 93-785; [2017] FamCAFC 125
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Holland & Holland (2017) FLC 93-798; [2017] FamCAFC 166
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235
Kohan and Kohan (1993) FLC 92-340
M v M (1988) 166 CLR 69; [1988] HCA 68
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Muldoon & Carlyle (2012) FLC 93-513; [2012] FamCAFC 135
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
APPELLANT: Mr Goldman
RESPONDENT: Ms Goldman
INDEPENDENT CHILDREN’S LAWYER: Tiyce & Lawyers
FILE NUMBER: SYC 3001 of 2015
APPEAL NUMBER: EA 83 of 2017
DATE DELIVERED: 12 April 2018
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Strickland, Murphy & Aldridge JJ
HEARING DATE: 20 February 2018
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 23 June 2017
LOWER COURT MNC: [2017] FamCA 531

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Anderson
SOLICITOR FOR THE APPELLANT: Humphreys Family Lawyers
COUNSEL FOR THE RESPONDENT: Mr Brezniak
SOLICITOR FOR THE RESPONDENT: Raihani Lawyers
COUNSEL FOR THE INDEPENDENT…

Continue reading GOLDMAN & GOLDMAN

Sign in free to access the full text

Details
AGLC
GOLDMAN & GOLDMAN [2018] FamCAFC 65
Case
[2018] FamCAFC 65
Decision Date

CaseChat Overview and Summary

Goldman & Goldman involved an appeal against a parenting and property settlement order made by the Family Court. The wife appealed the order for a four-week moratorium on the children's time with her, arguing it was inconsistent with expert evidence indicating a higher risk to the children's wellbeing. The wife also challenged the property settlement, arguing the primary judge had erred in excluding a sum held by her solicitors from the property pool. The husband contended that the primary judge's decision was appropriate and that the wife's arguments were without merit.

The court examined whether the primary judge's parenting order was erroneous and whether sufficient weight was placed on findings of unacceptable risk. The court concluded that the primary judge's order for a four-week moratorium was open on the evidence presented, and the point of the moratorium was to mitigate the risk. The court further found that the husband had not sought an order requiring the wife to complete treatment before the moratorium was lifted, and no such order was supported by the evidence or the wife's submissions. Regarding the property settlement, the court found the primary judge's findings were supported by the evidence and the exclusion of the sum from the property pool was open on the evidence.

The appeal was dismissed, and the husband was ordered to pay the wife's costs and those of the Independent Children's Lawyer. The court also dismissed an application by the husband to adduce further evidence, finding it to be controversial. The orders made by the court were to dismiss the appeal, order the husband to pay the costs of the wife and the Independent Children’s Lawyer, and direct that the appellant pay the respondent’s costs as agreed or assessed if no agreement was reached.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The appellant pay the costs of the Independent Children’s Lawyer fixed in the sum of $6,646.00.

3.

The appellant pay the costs of the respondent as agreed or, in default of agreement, as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.