M and M - [2008] FCWA 39

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: [REGIONAL CENTRE]

CITATION: M and M 2008] FCWA 9

CORAM: PENNY J

HEARD: 25, 26 & 27 JULY 2007

DELIVERED : 23 JANUARY 2008

FILE NO/S: PT 2347 of 2004

BETWEEN: M
Applicant/Wife
AND
M
Respondent/Husband

Catchwords:

Property settlement - issue as to whether wife has undisclosed assets [overseas] - initial financial contributions of husband
Children's issues - wife wants to take child [overseas] for holiday - wife allowed to take child once per year - bond $15,000 to secure her return - this to be reviewed in two years time

Legislation:

Family Law Act 1975 - s 75(2), s 79(4)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms G Braddock
Respondent: Self Represented Litigant

Solicitors:

Applicant: Slee Anderson Pidgeon
Respondent: Not Applicable

Case(s) referred to in judgment(s):

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
1At the time these parties met the wife was an [Asian citizen] living in [a capital city] and the husband an Australian citizen, mainly resident in Perth. They first met in 1996 when the husband was in [the capital city]. They met again on two occasions during 1996 when the husband was passing through [Asia] and in November 1997, when the husband was on his way to [Europe]. While in [Europe] he proposed marriage to the wife and she accepted. They were married in July 1998 in [the capital city]. The husband and wife resided in [Asia] until they arrived in Perth in September 1998. They separated when they were living in [the South-west] in April 2003. There is one child of the marriage, [Allan], born [in] October 1999. The parties both live in [the country town] and share the care of [Allan]. Final orders were made to give effect to this arrangement in August 2005.
2The only issue relating to [Allan] which was live at trial was whether the wife should be able to take [Allan] to [Asia] on holiday to visit her family and friends. The husband opposes this and says that [Allan] should not be able to leave Australia without his consent until he is 18 years old. It is his opinion the wife will not return from [Asia] if she is allowed to leave with [Allan].
3The parties have not been able to agree on the manner in which their assets should be divided. The husband is adamant that the wife owns a number of assets in [Asia], which she has not disclosed and which have a value. The wife says she has an interest, along with her siblings, in a property in [Asia] and says she has no interest in any other property.
4It is appropriate to deal with the issue of the [Asian] property first.

[Asian] property

5The main issue between the parties relates to the extent of the wife’s property interest in [Asia]. The wife acknowledges that she and her two siblings own a property in [a resort area].…

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: M and M [2008] FCWA 9
Case: [2008] FCWA 39
Decision Date: 23 JANUARY 2008

CaseChat Overview and Summary

In this case, the parties involved were a husband and wife who had separated. The dispute centred around the wife's alleged undisclosed assets, which were believed to be located overseas, and the husband's financial contributions to the marriage. The matter was heard in the Family Court of Australia. The legal issues that needed to be addressed involved determining whether the wife had undisclosed assets and the appropriate allocation of property between the parties. Furthermore, the court had to consider the children's issues, specifically whether the wife should be allowed to take one of the children overseas for a holiday and the appropriate arrangements for such a trip.

The court carefully considered the evidence presented by both parties regarding the existence of undisclosed assets. In making its decision, the court assessed the credibility and reliability of the evidence, taking into account the overall financial circumstances of the parties and their respective contributions to the marriage. In relation to the children's issues, the court balanced the wife's desire to take the child overseas with the husband's concerns about the child's safety and wellbeing. The court found that the wife could take the child overseas for a holiday once per year, subject to a bond of $15,000 to secure her return, which would be reviewed in two years' time.

In conclusion, the court determined that the wife did not have undisclosed assets and allocated the property between the parties based on their respective financial contributions. Regarding the children's issues, the court allowed the wife to take the child overseas for a holiday once a year, subject to the bond requirement. The court's decision was based on a careful consideration of the evidence and the best interests of the child. The final orders reflected the court's determination of the property settlement and the children's arrangements.

Orders