Vanderhum & Doriemus - [2007] FamCA 478

FAMILY COURT OF AUSTRALIA

SCVG & KLD

[2007] FamCA 478

FAMILY LAW - APPEAL FROM FAMILY COURT OF AUSTRALIA – FINDINGS OF FACT –Assertion that the trial Judge misunderstood expert opinion evidence not established. Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 cited.

FAMILY LAW - STATUTORY INTERPRETATION - CONSTRUCTION OF STATUTE – Complaint that the trial Judge erred in failing to take into account provisions of the amending Part VII of the Family Law Act 1975 yet to become operative not established. Harris v Caladine (1991) FLC 92-217, CDJ v VAJ (1998) FLC 92-828 and Allesch v Maunz [2000] HCA 40; (2000) FLC 93-033 considered with respect to the nature of “rehearing” by way of appeal to Full Court. Schedule 1, Part 2, sections 43 & 44 Family Law Amendment (Shared Parental Responsibility) Act 2006 and Part VII Family Law Act 1975 considered. Contention that applying “the law” as contained in Part VII of the Act at time of hearing of appeal rejected.

FAMILY LAW - APPEAL - FINDINGS OF FACT – Not established that the trial Judge erred in making certain finding of facts regarding financial circumstances of the parties.

Family Law Act 1975 Section 68F(2), Part VII, Part X
Family Law Amendment (Shared Parental Responsibility) Act 2006 Schedule 1, Part 2, section 43
Acts Interpretation Act 1901

Allesch v Maunz [2000] HCA 40; (2000) FLC 93-033
CDJ v VAJ (1998) FLC 92-828 at 85,448
Harris v Caladine (1991) FLC 92-217 at 78,486
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Maxwell v Murphy (1957) 96 CLR 261 at 267; [1957] ALR 231; (1957) 31 ALJ 143

APPELLANT:

SCVG

RESPONDENT:

KLD

FILE NUMBER:

2639

2005

APPEAL NUMBER:

2006

DATE DELIVERED:

24 May 2007

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

COLEMAN, WARNICK & THACKRAY JJ

HEARING DATE:

20 February 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 April 2006

LOWER COURT MNC:

[2006] FamCA 414

REPRESENTATION

COUNSEL FOR THE APPELLANT:

G R S.C.
A G

SOLICITOR FOR THE APPELLANT:

A T & Co
Solicitors

COUNSEL FOR THE RESPONDENT:

P M SC
A R

SOLICITOR FOR THE RESPONDENT:

M Lawyers

Orders

That the appeal be dismissed.
That the father pay the mother’s costs of and incidental to the appeal as agreed or assessed on a party/party basis.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as SCVG & KLD. This judgment was previously published under the pseudonym Vanderhum & Doriemus.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 55 of 2006
File Number: SY 2639 of 2005

SCVG

Appellant

And

KLD

Respondent

REASONS FOR JUDGMENT

This is an appeal by SVG (“the father”) against orders made by Moore J on 17 May 2006 in proceedings between the father and KLD (“the mother”) in relation to H born in 2002 and T born…

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 Vanderhum & Doriemus

Details

AGLC: Vanderhum & Doriemus [2007] FamCA 478
Case: [2007] FamCA 478
Decision Date: 24 May 2007

CaseChat Overview and Summary

This matter concerned an appeal from a decision of the Family Court of Australia. The parties involved were the father and the mother, and the dispute related to findings of fact made by the trial judge concerning the parties' financial circumstances and the application of provisions within Part VII of the *Family Law Act 1975* (Cth). The appeal was heard by Coleman, Warnick, and Thackray JJ.

The primary legal issues before the Full Court were whether the trial judge had erred in their findings of fact regarding the parties' financial circumstances, whether the trial judge had misunderstood expert opinion evidence, and whether the trial judge had failed to consider provisions of the amending Part VII of the *Family Law Act 1975* (Cth) that were not yet operative at the time of the original hearing. The court also considered the nature of a rehearing by way of appeal to the Full Court, referencing decisions such as *Harris v Caladine*, *CDJ v VAJ*, and *Allesch v Maunz*.

The Full Court rejected the assertion that the trial judge had misunderstood expert evidence, finding that the appellant had not established this ground of appeal. Similarly, the court found no error in the trial judge's findings of fact concerning the parties' financial circumstances. The court also determined that the trial judge had not erred in failing to take into account the yet-to-be-operative provisions of the amending Part VII of the *Family Law Act 1975* (Cth), rejecting the contention that the law as contained in Part VII at the time of the appeal hearing should be applied. The court affirmed the principles regarding the nature of appeals as outlined in the cited authorities.

The appeal was dismissed, and the father was ordered to pay the mother's costs of and incidental to the appeal.

Orders

Orders of the court

That the appeal be dismissed.

That the father pay the mother’s costs of and incidental to the appeal as agreed or assessed on a party/party basis.

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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