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Marsden & Winch (No. 3)

Marsden & Winch (No. 3)

Case [2007] FamCA 1364 21 November 2007

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FAMILY COURT OF AUSTRALIA

MARSDEN AND WINCH (No. 3)

[2007] FamCA 1364

FAMILY LAW - APPEAL – From decision of Family Court judge – CHILDREN – With whom a child spends time – where order that child not spend time with father – whether findings open to trial Judge – whether trial Judge failed to apply Part VII of the Family Law Act 1975 – whether trial Judge failed to give adequate reasons for not implementing recommendations of expert – no appealable error – appeal dismissed

FAMILY LAW - APPEAL – From decision of Family Court judge – PROPERTY SETTLEMENT – inadequate reasons given in relation to s 75(2) adjustment – discretion re‑exercised – no orders made

FAMILY LAW - APPEAL – COSTS – whether an application for a stay is an indulgence – cross‑appeal allowed – discretion re‑exercised – each party to bear their own costs

FAMILY LAW - APPEAL – COSTS – trial Judge considered prior applications – trial Judge took into account irrelevant considerations – appeal allowed – discretion re‑exercised – each party to bear their own costs

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 60CC, s 61DA, s 75(2), s 93A(2), s 100B, s 117
Family Law Rules 2004 r 15.49, r 22.12

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Bennett and Bennett (1991) FLC 92-191
Bhattacharya v Director-General of Department of Education & Training [2000] NSWCA 74
Briginshaw and Briginshaw (1938) 60 CLR 336
Chamberlain v R. (No 2) (1984) 153 CLR 521
Clauson and Clauson (1995) FLC 92-595
Collins & Collins (1990) FLC 92-149
Council of The Law Society of New South Wales v A Solicitor [2002] NSWCA 62
Fox v Percy (2003) 214 CLR 118
Goode and Goode (2006) FLC 93-286
Helton v Allen (1940) 63 CLR 691
J & J (1994) FLC 92-476
Johnson v Johnson (1997) FLC 92-764
Lovell and Lovell (1950) 81 CLR 513
M and M (1988) FLC 91-979
Marion’s case (1992) 175 CLR 218
McWilliam v Penthouse Publications Ltd [2001] NSWCA 237
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Northern Territory v GPAO (1999) 196 CLR 553
Palmer v Dolman [2005] NSWCA 361
Penhall-Jones v State of NSW [2007] FCA 925
Re C & J (1996) FLC 92-697
Re F: Litigants in person guidelines (2001) FLC 93‑072
Re JRL; ex parte CJL (1986) 161 CLR 342
Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192
Reg v Gyngall [1893] 2 QB 232
Rejfek v McElroy (1965) 112 CLR 517
Transport Industries v Longmuir [1997] 1 VR 125
Trustees of the Property of John Daniel Cummins v Cummins (2006) 224 ALR 280
WK v SR (1997) FLC 92-787

APPELLANT:

Mr Marsden

RESPONDENT:

Ms Winch

FILE NUMBER:

CAF

2004

FIRST APPEAL NUMBER:

2006

SECOND APPEAL NUMBER:

125

2006

THIRD APPEAL NUMBER:

110

2007

DATE DELIVERED:

21 November 2007

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney

JUDGMENT…

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 Marsden & Winch (No. 3)

Details

AGLC: Marsden & Winch (No. 3) [2007] FamCA 1364
Case: [2007] FamCA 1364
Decision Date: 21 November 2007

CaseChat Overview and Summary

The appeal concerned decisions made by a judge of the Family Court of Australia regarding children's time with a parent and property settlement. The parties involved were Marsden and Winch.

The court was required to determine whether the trial judge had made findings that were open to them, specifically in relation to orders concerning a child's time with the father and whether Part VII of the *Family Law Act 1975* (Cth) had been properly applied. Further issues included whether the trial judge had provided adequate reasons for not implementing expert recommendations and whether the reasons given for property settlement adjustments under section 75(2) of the *Family Law Act 1975* (Cth) were sufficient. The court also considered appeals relating to costs orders made at trial.

Regarding the children's time, the Full Court found no appealable error in the trial judge's findings or application of the *Family Law Act 1975* (Cth), dismissing that aspect of the appeal. However, concerning the property settlement, the Full Court found the reasons for the section 75(2) adjustment to be inadequate and re-exercised the discretion, making no orders in relation to this adjustment. The appeals concerning costs were allowed, with the Full Court finding that the trial judge had considered irrelevant considerations in making the original costs orders. The discretion was re-exercised, and each party was ordered to bear their own costs.

Orders