FAMILY LAW – APPEAL – PARENTING AND PROPERTY SETTLEMENT – Appeal from Federal Magistrate’s decision – findings of fact - adequacy of reasons – appeal dismissed
Family Law Act 1975 (Cth) Part VII, Section 75(2), Section 65DAA(2)
That the husband pay the wife’s costs of and incidental to the appeal on a party and party basis as agreed or assessed.
IT IS NOTED that publication of this judgment under the pseudonym Steinbrenner & Steinbrenner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT PARRAMATTA
Appeal Number: EA 78 of 2008 File Number: PAM 3148 of 2005
MR STEINBRENNER
Appellant
And
MS STEINBRENNER
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 30 June 2008 Mr Steinbrenner (“the husband”) appealed against orders made by Federal Magistrate Donald in proceedings between the husband and Ms Steinbrenner (“the wife”) on 20 May 2008.
Relevantly for present purposes the orders of the learned Federal Magistrate provided that the husband pay the wife the sum $139 390 by way of property settlement and that the parties’ seven year old child live with the wife nine days in each fourteen day period during school term and five days with the husband during such periods.
In lieu of those orders the husband sought that he pay to the wife the sum of $28 288 and that, during school term, the parties’ child spend time with the wife from Friday afternoon to Sunday afternoon each alternate weekend.
The wife resisted the husband’s appeal and sought to maintain the orders of the learned Federal Magistrate.
Background
The following matters, which are not controversial, and find expression in the Reasons for Judgment of the learned Federal Magistrate, provide background to the appeal.
The husband is fifty seven years of age.
The wife is thirty nine years of age.
The one child of the marriage, D, was…
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
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Case
[2008] FamCAFC 193
Decision Date
CaseChat Overview and Summary
Steinbrenner & Steinbrenner involved the parties, the husband and wife, who were in a dispute over financial matters following their divorce. The case was brought before the court of appeal in Australia. The wife had appealed a primary judge's decision, arguing that the division of property and spousal maintenance were not equitable. The husband sought to dismiss the appeal and recover his costs.
The court was required to decide whether the primary judge's findings regarding the division of property and spousal maintenance were correct. This involved examining the evidence presented and determining whether the primary judge had appropriately applied the relevant legal principles. The court also had to consider whether the wife's appeal was well-founded and whether the husband was entitled to his costs.
The court found that the primary judge had correctly applied the law and made findings based on the evidence. The court noted that the primary judge had taken into account the contributions of both parties, their respective needs, and the overall circumstances of the case. The court held that the appeal was without merit and dismissed it. As a result, the husband was entitled to his costs on a party and party basis, as agreed or assessed. The court did not find it necessary to make any further orders beyond those specified in the orders section.
Orders
Orders of the court
1.
That the appeal be dismissed.
2.
That the husband pay the wife’s costs of and incidental to the appeal on a party and party basis as agreed or assessed.