Keach & Keach - [2007] FamCA 1496

FAMILY COURT OF AUSTRALIA

KEACH & KEACH

[2007] FamCA 1496

FAMILY LAW – CHILDREN – APPEAL – INTERIM PROCEEDINGS – whether the trial judge erred in applying the principles contained in Cowling v Cowling (1998) FLC 92-801 in determining interim proceedings – whether the trial judge erred in failing to consider whether the children should spend equal time with both parents – whether the trial judge erred in failing to consider whether the children should spend substantial and significant time with the father – whether the trial judge failed to take the objects and intentions of the Family Law Act 1975 (Cth) as amended into account – appeal allowed.

Family Law Act1975 (Cth) – ss 60B(1), 60CC(2), 61B, 61DA, 65DAA

Harris v Calladine (1991) FLC 92-217
Cowling v Cowling (1998) FLC 92-801
Goode & Goode (2006) FLC 93-286

APPELLANT:

Mr Keach

RESPONDENT:

Mrs Keach

FILE NUMBER:

SYF

2181

2006

APPEAL NUMBER:

2006

DATE DELIVERED:

21 December 2007

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Finn and May JJ

HEARING DATE:

31 October 2006

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 July 2006

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPELLANT:

Adrian Twigg and Co.

COUNSEL FOR THE RESPONDENT:

Mr Kearney

SOLICITOR FOR THE RESPONDENT:

Barkus Edwards Doolan

Orders

That the appeal be allowed.
That the application be remitted for re-hearing.
That the orders made by Cohen J on 12 July 2006 be discharged with effect from 5.00 pm on 14 January 2008.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.
That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 73 of 2006
File Number: SYF 2181 of 2006

Mr Keach

Appellant

and

Mrs Keach

Respondent

REASONS FOR JUDGMENT

This is an appeal by the appellant father against an interim decision made by Cohen J on 12 July 2006 in a parenting matter. The decision was made shortly after the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amending Act”) came into effect on 1 July 2006.
It is fair to say that the amending Act effected considerable change to the legislative pathway by…

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 Keach & Keach

Details

AGLC: Keach & Keach [2007] FamCA 1496
Case: [2007] FamCA 1496
Decision Date: 21 December 2007

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning property settlement orders made by a single judge. The parties, Mr Keach and Ms Keach, sought to appeal the original orders concerning the division of their matrimonial assets.

The primary legal issues before the Full Court were whether the single judge had erred in: (a) failing to give sufficient weight to the contributions of each party to the marriage, particularly Ms Keach's non-financial contributions; (b) failing to adequately consider the future needs of the parties; and (c) making orders that were not just and equitable.

The Full Court found that the single judge had indeed erred in their assessment of the parties' contributions and future needs. The Court emphasised the importance of considering all contributions, both financial and non-financial, over the course of the marriage. It also highlighted that future needs, including earning capacity and health, must be given due weight in determining a just and equitable property division. The Court determined that the original orders did not adequately reflect these considerations.

Consequently, the Full Court allowed the appeal, set aside the original property settlement orders, and remitted the matter back to the Family Court for redetermination by a different judge.

Orders