PRESTON & PRESTON - [2013] FamCA 28

FAMILY COURT OF AUSTRALIA

PRESTON & PRESTON

[2013] FamCA 28

FAMILY LAW – PROPERTY SETTLEMENT - Partial property settlement - disputed entitlement and quantum of any order - Order made.

Family Law Act 1975 (Cth)

Bing and Bing [2007] FamCA 418, (2007) FLC 93-318
Strahan and Strahan (interim property orders) [2009] FamCAFC 166

APPLICANT:

Ms Preston

RESPONDENT:

Mr Preston

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

8813

2012

DATE DELIVERED:

1 February 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

25 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms De Vere

SOLICITOR FOR THE APPLICANT:

Champion Legal

COUNSEL FOR THE RESPONDENT:

Ms Bridger

SOLICITOR FOR THE RESPONDENT:

Cahine & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stidwell Solicitors

Orders

That pursuant to s 79 of the Family Law Act 1975 (Cth), the husband pay to the wife the sum of $120,000 by way of partial settlement of property.
That all interim applications are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Preston & Preston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8813 of 2012

Ms Preston

Applicant

And

Mr Preston

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The proceedings before me on 25 January 2013 between Mr Preston (“the husband”) and Ms Preston (“the wife”) were commenced in Melbourne on the basis of a review of the Senior Registrar’s decision in which he transferred the proceedings to Sydney.
An Independent Children’s Lawyer had been previously appointed by the Court and a solicitor filed notice on the record as the Independent Children’s Lawyer. That lawyer made contact with the Court seeking to be heard in respect of parenting issues but by telephone from France. I rejected that application. A proper application should have been made under the Rules.
Notwithstanding there were live parenting applications as well as financial issues between the parties, the Court was only required to determine one financial issue relating to a claim by the wife that the husband pay her $120,000. These reasons concern that issue. It must be noted however that the parenting orders, whilst reached through an uneasy compromise, were still orders of the Court and which, in my view, satisfy the legislative requirements of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
In the midst of argument over the change of venue and the parenting issues, I agreed to give a priority hearing to the matter on the basis that I could see difficulty in the relationship between the husband and the child J (“the child”) if the wife remained in Melbourne. I could also see difficulty for the child if the order was made that the wife return him to live in Sydney. The pragmatic solution was to have the matter heard as a matter of urgency.…

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 PRESTON & PRESTON

Details

AGLC: PRESTON & PRESTON [2013] FamCA 28
Case: [2013] FamCA 28
Decision Date: 1 February 2013

CaseChat Overview and Summary

In *Preston & Preston*, the Family Court of Australia considered a property settlement dispute between a husband and wife. The specific nature of the dispute, beyond the need for property settlement, is not detailed in the provided text.

The central legal issue before Cronin J was the appropriate division of the parties' property under section 79 of the *Family Law Act 1975* (Cth). This required the court to determine the quantum of financial resources to be transferred from the husband to the wife as a partial settlement.

Cronin J ordered that the husband pay the wife the sum of $120,000. This payment was designated as a partial settlement of property. All interim applications made by the parties were otherwise dismissed.

Orders

Orders of the court

That pursuant to s 79 of the Family Law Act 1975 (Cth), the husband pay to the wife the sum of $120,000 by way of partial settlement of property.

That all interim applications are otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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