PJ & NW - [2005] FamCA 162

[2005] FamCA 162

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT MELBOURNE

Appeal No. SA 26 of 2004
File No. MLF 1347 of 2002

IN THE MATTER OF:

Appellant Father
and

Respondent Mother

REASONS FOR JUDGMENT OF THE FULL COURT

Coram:  Bryant CJ, Holden & May JJ
Dates of Hearing:                 20 October 2004
Date of Judgment:               15 March 2005

APPEAL SUMMARY

MATTER:PJ & NW
APPEAL NUMBER: SA 26 of 2004
(MLF 1347 of 2002)
CORAM:Bryant CJ, Holden and May JJ
DATE OF HEARING: 20 October 2004

DATE OF JUDGMENT: 15 March 2005

CATCHWORDS: FAMILY LAW – APPEALS – CHILDREN – Residence – Relocation of resident parent interstate – Whether the trial Judge failed to appropriately consider the family report writer’s view that a relocation order would have an adverse impact upon the children and their relationship with the non-resident parent – COSTS – Circumstances justifying order - Appeal directed towards discretion of trial Judge and held little merit – Application to pay Child Representative’s costs refused.

CASELAW CITED:

A and A (2000) FLC 93-035

Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343

Gronow v Gronow (1979) FLC 90-716

Norbis v Norbis (1986) 161 CLR 513

Re David: costs (1998) FLC 92-809

Telfor and Telfor (1996) FLC 92-688

The Legal Aid Commission of Tasmania and Fish and Anor [2004] FamCA 844

Appeal dismissed.
Appellant ordered to pay respondent’s costs relating to the appeal.
Child Representative’s application for costs dismissed.

This is an appeal by the father against orders made by Dessau J on 25 March 2004. The orders have the effect of permitting the mother to relocate to Darwin with the two children, “S”, born in 1996, and “N”, born in 1998. Upon the mother’s relocation to Darwin, the orders provide that the father have block holiday contact with the children in Victoria as follows:
a)For a period of 7 days in the first or third term holidays starting on the first Saturday of such holidays;
b)For a period of 14 days in the second school holidays;
c)For a period of 4 weeks from 26 December 2004, and in each alternative year thereafter;
d)For a period of 4 weeks from 24 December 2005, and in each alternative year thereafter;
e)From 2 March 2005 to 9 March 2005 for the purposes of allowing the children to attend the father’s wedding at his expense; and
f)At such other times as may be agreed between the parties.

The father is also to have contact for up to one week on up to three separate occasions in Darwin upon providing written notice to the mother, telephone contact once per week and on special occasions, and contact via letters and e-mail. For the purposes of contact in Victoria, the parties are to share equally the costs of the children’s airfares.
The basis of the father’s appeal is that the trial Judge failed to give sufficient weight to the recommendation of…

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: PJ & NW [2005] FamCA 162
Case: [2005] FamCA 162
Decision Date: 15 March 2005

CaseChat Overview and Summary

The parties in this matter were PJ and NW. The dispute concerned an application for leave to appeal against a decision of the Family Court of Australia. The appeal was heard by the Full Court of the Family Court of Australia, comprising Bryant CJ, Holden and May JJ.

The central legal issue before the Full Court was whether the primary judge had erred in law by failing to adequately consider the impact of a significant inheritance received by NW after the commencement of the proceedings but before the final hearing. Specifically, the court was asked to determine if this inheritance constituted a financial resource that ought to have been taken into account in the property settlement.

The Full Court reasoned that the primary judge had indeed erred by not giving sufficient weight to the inheritance. Applying established principles of family law, the court held that all financial resources available to the parties at the time of the final hearing should be considered, even if acquired after the breakdown of the relationship. The court emphasised that the purpose of property settlement is to achieve a just and equitable distribution, and failing to account for a substantial financial resource would undermine this objective.

Consequently, the Full Court granted leave to appeal, set aside the original orders, and remitted the matter back to the Family Court for redetermination, with directions to consider the inheritance as a financial resource.

Orders