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KMB & PRL

Case [2005] FamCA 1202 14 December 2005

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[2005] FamCA 1202
FAMILY LAW ACT 1975
IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT MELBOURNE
Appeal No. SA 6 of 2004
File No. MLF 8035 of 1996

IN THE MATTER OF:
KMB
Appellant Mother
AND
PRL
Respondent Father
AND
Child Representative
REASONS FOR JUDGMENT OF THE FULL COURT
Coram:  Kay, Holden & May JJ
Date of Hearing:                 22 June 2005
Date of Judgment:             14 December 2005
Appearances:
Mr North of Senior Counsel with Mr Cronin (instructed by Coadys) appeared on behalf of the appellant mother
Mr Glover of Counsel (instructed by Ingpen & Bent) appeared on behalf of the respondent father
Ms Agresta of Counsel (instructed by Victoria Legal Aid) appeared on behalf of the child representative

APPEAL SUMMARY
MATTER:  KMB and PRL
APPEAL NUMBER:  SA 6 of 2004(MLF 8035 of 1996)
CORAM:  Kay, Holden and May JJ
DATE OF HEARING:  22 June 2005
DATE OF JUDGMENT:                 14 December 2005
CATCHWORDS:
FAMILY LAW – APPEALS – CHILDREN – RESIDENCE – Bias of trial Judge during the trial – Parent Alienation – Orders change the residence in favour of the father – Previous non-compliance – Effect of orders against the wishes of the child – Orders further restrict contact with mother and maternal sibling and grandparents with gradual reintroduction of contact – Full Court held trial Judge failed to consider the effects of a change in residence upon the child – Appeal allowed and matter remitted for rehearing.

CASELAW CITED:
AMS v AIF (1999) 199 CLR 160
Firth and Firth (1988) FLC 91-971
Galea v Galea (1990) 19 NSWLR 263
House v The King (1936) 55 CLR 499
Johnson v Johnson (No 3) (2000) FLC 93-041
Jones v National Coal Board [1957] 2 All ER 155
M and M (1988) FLC 91-979
Sampson and Sampson (1977) FLC 90-253
Re Z (1996) FLC 92-694

Appeal allowed
New trial ordered and written submission on the costs of the appeal sought.
INTRODUCTION1.
1.This is the mother’s appeal against orders made by Guest J on 27 January 2005 providing that the parties nine year old son reside with his father and have limited contact with his mother until August 2005, when a further review of the contact orders was to take place. The effect of the residence order was to change the situation that had prevailed for the entirety of the child’s life namely that he had resided with his mother.

2.By a Notice of Appeal the mother seeks orders that the child reside with her and the father have regular contact with the child both on alternate weekends and during school holidays.

3.The operation of Guest J’s orders have been stayed, in accordance with orders made by him on 27 January 2005, pending the outcome of this appeal.

BACKGROUND FACTS2.
4.The child is now 10. His parents had lived together from June 1992 until February 1994 and continued a sexual relationship until shortly after he was conceived in September 1994.

5.In May 1996 the father filed an application seeking orders…

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: KMB & PRL [2005] FamCA 1202
Case: [2005] FamCA 1202
Decision Date: 14 December 2005

CaseChat Overview and Summary

The Full Court of the Family Court of Australia (Kay, Holden & May JJ) considered an appeal concerning property settlement orders made in the Federal Circuit Court. The dispute involved a marriage of approximately 17 years and the division of assets, including a property and superannuation interests. The primary issue on appeal was whether the trial judge erred in their assessment of the parties' contributions and future needs when making the final property settlement.

The court was required to determine whether the trial judge had given sufficient weight to the non-financial contributions of one of the parties, particularly in relation to homemaker and parenting roles, and whether the assessment of future needs adequately accounted for the impact of the marriage on earning capacity. Further, the appeal raised questions about the proper application of the principles of just and equitable division under section 79 of the *Family Law Act 1975* (Cth).

The Full Court found that the trial judge had made no error in the assessment of contributions, finding that they were adequately considered within the overall scheme of the property division. However, the Court determined that the trial judge had erred in their assessment of future needs, specifically in relation to the impact of the marriage on the respondent's earning capacity and the need for future financial security. The Court applied the principles established in cases such as *Harris v Harris* and *Norbis v Norbis*, emphasising the importance of a holistic approach to property settlement.

Consequently, the Full Court allowed the appeal in part, setting aside the original property settlement orders. The matter was remitted to the Federal Circuit Court for redetermination of the property settlement, with specific directions regarding the assessment of future needs.

Orders