OS and PS - [2007] FamCA 1180

FAMILY COURT OF AUSTRALIA

OS & PS

[2007] FamCA 1180

FAMILY LAW - APPEAL – EQUAL SHARED PARENTAL RESPONSIBILITY – Wife appealed the order that the husband have sole parental responsibility in relation to the child’s education – Held that on the evidence, the Federal Magistrate was in error in removing education as a shared parental responsibility – Appeal allowed – Husband and wife to have equal shared parental responsibility for the child

FAMILY LAW - SPOUSAL MAINTENANCE – Wife appealed Federal Magistrate’s failure to order spousal maintenance to be paid to her – Held that the Federal Magistrate was in error in failing to deal with the requirements of a maintenance claim, particularly the wife’s needs to maintain an adequate standard of living and her ability to contribute to it – Appeal allowed – Remitted for rehearing

FAMILY LAW - PROPERTY – Wife appealed Federal Magistrate’s dismissal of her property claim on the basis that there was not a pool of assets to be divided – Held that the Federal Magistrate was in error, having not made appropriate add backs and failing to analyse liabilities – There was clearly a modest pool of assets available for division between the parties – Appeal allowed – Due to the state of the evidence, this issue remitted for rehearing

Family Law Act 1975 (Cth)

Chorn and Hopkins (2004) FLC 93-204; (2004) 32 Fam LR 518

M and M [1998] FamCA 42

APPELLANT:

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

MS SUE MACGREGOR

FILE NUMBER:

MLM

1611

2006

APPEAL NUMBER:

2007

DATE DELIVERED:

24 September 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Kay J

HEARING DATE:

24 September 2007

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

11 May 2007

LOWER COURT MNC:

[2007] FMCAfam 285

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Crozier-Durham

SOLICITOR FOR THE APPELLANT:

Raynal & Associates

COUNSEL FOR THE RESPONDENT:

Mr Howe

SOLICITOR FOR THE RESPONDENT:

Calleas Le Brun & Burke Solicitors

ORDERS

The appeal be allowed in part.
Order 2 of the orders made by Federal Magistrate Lucev on 11 May 2007 be varied by deleting all words after “for the child”.
Orders 10, 11, 12 of the above mentioned orders be set aside and the wife’s application for alteration of property interests and spousal maintenance be remitted to the Federal Magistrates Court at Melbourne for rehearing.
The Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be…

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: OS and PS [2007] FamCA 1180
Case: [2007] FamCA 1180
Decision Date: 24 September 2007

CaseChat Overview and Summary

The appeal concerned orders made by Federal Magistrate Lucev on 11 May 2007, following an application by the wife (appellant) and the husband (respondent). The specific nature of the dispute leading to these orders is not detailed, but the outcome of the appeal indicates it involved property interests and spousal maintenance.

The court was required to determine whether the orders made by the Federal Magistrate were appropriate, particularly in relation to the alteration of property interests and spousal maintenance. The appeal sought to vary or set aside certain aspects of the original orders.

Kay J allowed the appeal in part, varying one of the original orders concerning the child and setting aside others relating to property interests and spousal maintenance. These latter matters were remitted to the Federal Magistrates Court for rehearing. The court also granted costs certificates to both the appellant and the respondent in relation to the appeal, and to each party in relation to the new trial. Otherwise, the appeal was dismissed.

Orders

Orders of the court

The appeal be allowed in part.

Order 2 of the orders made by Federal Magistrate Lucev on 11 May 2007 be varied by deleting all words after “for the child”.

Orders 10, 11, 12 of the above mentioned orders be set aside and the wife’s application for alteration of property interests and spousal maintenance be remitted to the Federal Magistrates Court at Melbourne for rehearing.

The Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by the appellant in relation to the appeal.

The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by the respondent in relation to the appeal.

The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 each party in respect of the costs incurred be each party in relation to the new trial.

Otherwise the appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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