APPEARANCES: Mr Mason of Counsel, (instructed by Clerk Walker Solicitors, 57 Davey Street, Hobart TAS 7000) appeared on behalf of the appellant husband.

Mr Proctor of Senior Counsel, (instructed by Murdoch Clarke Solicitors, 10 Victoria Street, Hobart TAS 7000) appeared on behalf of the respondent wife.

Name of Appeal  GWR & VAR
Appeal Number  SA 23/2005
Date of Appeal hearing                   4^th day of October 2005
Date of Judgment  14^th day of September 2006
Coram  Bryant CJ, Finn, Coleman JJ

Catchwords: APPEAL – from decision of Family Court judge - Whether the trial Judge erred in declining to find that the husband’s girlfriend would require the husband to repay his debt to her of $67,000 – Trial Judge’s findings of fact not successfully challenged – Open to the husband to have called his girlfriend to give evidence – Open to trial Judge, to the extent he did, to draw a Jones v Dunkel (1959) 101 CLR 298 inference.
APPEAL – from decision of Family Court judge – Whether the trial Judge erred in preferring the unsubdivided value of the former matrimonial home to the subdivided value – Discussion of principles applicable to valuation of land, namely “valuation for highest and best use” – Valuation principles applicable to valuation of former matrimonial home – Challenge to trial Judge’s decision successful – Discretion re-exercised and subdivided value substituted for value of former matrimonial home.
APPEAL – from decision of Family Court judge – Whether the trial Judge erred in his treatment and valuation of the husband’s superannuation interest – Discussion of approach to, and valuation of, superannuation – C v C (2005) FLC 93-220 followed – No error found on behalf of the trial Judge – Trial Judge’s discretion did not miscarry in relation to either the date at which the superannuation interest was valued or his conclusion in relation to contributions.

Jones v Dunkel (1959) 101 CLR 298
Spencer v Commonwealth (1907) 5 CLR 418
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1980) 146 CLR 336
Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor (2003) 129 LGERA 65
C v C (2005) FLC 93-220

Appeal allowed – discretion re-exercised.
Costs certificates ordered.

By Amended Notice of Appeal filed in Court on the hearing of the appeal, the husband appealed against orders made by Hannon J in proceedings between himself and the wife on 5 April 2005, and amended on 20 April 2005. The effect of his Honour’s orders was to transfer to the wife the former matrimonial home of the parties…

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 GWR v VAR

Details

AGLC: GWR v VAR [2006] FamCA 894
Case: [2006] FamCA 894
Decision Date: 14 September 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal by the father (VAR) against orders made by a judicial registrar concerning the parenting of the parties' child. The mother (GWR) sought final parenting orders, and the judicial registrar made orders that were largely in her favour, including that the child live with the mother and spend significant time with the father. The father appealed these orders, arguing that the judicial registrar erred in her findings of fact and in her application of the law.

The primary legal issues before the Full Court were whether the judicial registrar had made findings of fact that were against the weight of the evidence, and whether she had failed to properly consider the paramountcy principle, specifically the child's best interests, in making her final orders. The father contended that the judicial registrar had placed undue weight on certain evidence and had not adequately assessed the risks associated with the mother's proposed parenting arrangements.

The Full Court analysed the evidence presented to the judicial registrar and the reasons for her decision. It found that the judicial registrar had carefully considered all the evidence, including expert reports and oral testimony, and had made findings of fact that were open to her on the evidence. The Court affirmed that the judicial registrar had correctly applied the paramountcy principle, giving due consideration to the child's best interests as mandated by the *Family Law Act 1975* (Cth). The Court found no error in the judicial registrar's assessment of the risks or her ultimate conclusions regarding the parenting arrangements.

The appeal was dismissed, and the final parenting orders made by the judicial registrar were affirmed.

Orders