MAKAM and RAIKAR - [2015] FCWA 104

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MAKAM and RAIKAR [2015] FCWA 104

CORAM: CRISFORD J

HEARD: 14, 15, 16, 17, 18, 21, 22 & 24 SEPTEMBER 2015, 18 NOVEMBER 2015, 8 DECEMBER 2015 AND 6 JANUARY 2016

DELIVERED : 29 JANUARY 2016

FILE NO/S: PTW 2551 of 2012

BETWEEN: MR RAIKAR
Applicant
AND
MS MAKAM
Respondent

Catchwords:

CHILDREN – RELOCATION – Where at the commencement of their relationship the parties agreed that the mother and her daughter from a previous relationship would relocate from the United States of America (“the USA”) to live with the father as a family in Western Australia – where there is one child of the marriage aged nine – where the mother seeks sole parental responsibility for the child and the ability to relocate, with the child and her daughter, to the USA – where the father opposes relocation and seeks that the parties share parental responsibility for the child – where the Court found that the presumption that it is in the child’s best interest for parents to have equal shared parental responsibility had not been rebutted – where the Court considers that the child should spend, at the very least, substantial and significant time with each parent – where the Court considers that the proposals put forward by the father are more in line with the best interests of the child – where relocation is not permitted.

PROPERTY SETTLEMENT – Where it is just and equitable to make orders in relation to the parties’ property – where the husband maintains he made a greater contribution amounting to 70 per cent – where the wife accepts the husband made a greater initial contribution but disputes the magnitude – where the husband says the wife is entitled to an adjustment of 25 per cent pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) – where the wife says her future needs warrant a substantial adjustment – where the husband says that an appropriate final result is for the parties to share equally in their property – where the Court found that the husband made a greater contribution overall amounting to 65 per cent – where the Court found that the wife was entitled to an adjustment of 27.5 per cent pursuant to s 75 (2) of the Act.

SPOUSAL MAINTENANCE – Where the wife seeks that the husband pay her periodic spousal maintenance in an amount determined by the Court – where orders were made earlier in the proceedings for the husband to pay the wife periodic spousal maintenance of $1,390 a week and additional payments to include the mortgage repayments; gym fees; car registration; and utility expenses – where the husband has made a concession in the orders he proposes in relation to the payment of spousal maintenance in the amount of $1,000 a week to the wife – where the Court found that the wife has overcome any threshold requirement…

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 MAKAM and RAIKAR

Details

AGLC: MAKAM and RAIKAR [2015] FCWA 104
Case: [2015] FCWA 104
Decision Date: 29 JANUARY 2016

CaseChat Overview and Summary

Family Law Act 1975 (Cth) – where the Court found that the husband made a 60 per cent contribution to the property and that the wife is entitled to an adjustment of 40 per cent. The case of MAKAM and RAIKAR involved a dispute over the relocation of a child and the distribution of property following the separation of the parties. The parties had agreed at the commencement of their relationship that the mother and her daughter from a previous relationship would relocate from the United States of America to Western Australia to live with the father. They later had a child together, and the mother sought sole parental responsibility for the child and permission to relocate with the child and her daughter to the USA. The father opposed relocation and sought shared parental responsibility for the child.

The legal issues before the Court included whether the presumption of equal shared parental responsibility was rebutted and whether relocation to the USA would be in the child's best interests. The Court found that the presumption had not been rebutted and that the child should spend substantial and significant time with each parent. The Court considered the father's proposals to be more in line with the child's best interests and did not permit relocation. The Court also found that it was just and equitable to make orders in relation to the parties' property, considering the husband's greater contribution of 60 per cent and the wife's entitlement to an adjustment of 40 per cent. The Court made orders accordingly, denying relocation and setting out the property distribution.

Orders