VAK & AK

Case [2005] FamCA 803 12 August 2005

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[2005] FamCA 803

FAMILY LAW ACT 1975

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

Appeal No. SA 1 of 2004
File No. MLF 4274 of 2002

IN THE MATTER OF:

VAK

Appellant Wife

- and -

Respondent Husband

REASONS FOR JUDGEMENT OF THE FULL COURT

CORAM: Bryant CJ, Rowlands and May JJ
DATE OF HEARING: 18 October 2004
DATE OF JUDGEMENT: 12 August 2005

APPEARANCES: Mr St John of Senior Counsel with Mr Strum instructed by Lander & Rogers appeared on behalf of the Appellant Wife.

Mr Brown of Senior Counsel with Mr Melilli of counsel instructed by Testart Robinson appeared on behalf of the Respondent Husband.

1. Introduction

This is an appeal by the wife from orders made by Watt J on 18 December 2003 determining competing applications for property settlement.

The essence of the appeal concerns the decision by the trial Judge that the wife’s contributions to the asset pool fell within a range of 10 per cent between 75 per cent and 85 per cent and the approach taken by the trial Judge in assessing contribution and matters relevant to s 75(2).

The trial took place in Melbourne on two days in December 2003. The parties entered into consent parenting orders on the first day of trial, a child support agreement on the second day and partial consent orders for the division of property also on the second day of trial.

The partial consent orders specified the husband was to retain the property known as ‘the M property’ valued at $462,500 and his superannuation valued at $163,050, and the wife was to retain the property known as ‘the E property’ valued at $1,125,000. At the time of trial, it was agreed that the parties’ net asset worth amounted to $3,162,778.

The issue at trial was whether any payment should be made by either party to the other to achieve a just and equitable outcome.

At trial the wife sought 83 per cent of the value of the total property pool, submitting that this reflected the percentage of direct financial contribution made by her parents to the property pool. The husband sought 30 to 35 per cent based on his contributions.

Watt J found that the wife’s contributions to the asset pool were in the range of 75 per cent to 85 per cent and that the appropriate order was to allocate 75 per cent to the wife as anything more would not be a just and equitable result.

The orders made on 18 December 2003 included the parties’ partial consent orders and further orders that the wife pay the husband the sum of $275,000 and that the husband be responsible for all liabilities.

On 21 June 2004, the wife filed a Second Amended Notice of Appeal (SA1 of 2004) against all of the orders made by Watt J on 18 December 2003. In that document the wife seeks that the orders be set aside and that the husband repay her $275,000…

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: VAK & AK [2005] FamCA 803
Case: [2005] FamCA 803
Decision Date: 12 August 2005

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal concerning parenting orders in a dispute between VAK and AK. The primary issue before the court was whether the judge at first instance had erred in making final parenting orders that provided for the children to live with the father, AK, and for the mother, VAK, to have specified time with the children.

The Full Court was required to determine whether the judge had failed to adequately consider the mother's proposed parenting arrangements, whether the judge had placed undue weight on certain evidence, and whether the judge had made findings of fact that were not supported by the evidence. The appeal also raised questions about the proper application of the principles governing the best interests of the child, particularly in circumstances where there were allegations of family violence.

In its reasoning, the Full Court analysed the transcript and the judge's reasons for judgment. It found that the judge had not failed to consider the mother's proposals, but rather had weighed them against other relevant factors, including the children's expressed wishes and the evidence of family violence. The court affirmed that the paramount consideration in parenting disputes is the best interests of the child, and that a judge is entitled to give such weight to different aspects of the evidence as they consider appropriate. The Full Court concluded that the judge's findings of fact were open to be made on the evidence presented and that the judge had correctly applied the relevant legal principles.

The appeal was dismissed, and the final parenting orders made by the judge at first instance were affirmed.

Orders