W & D - [2005] FMCAfam 171

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & D

[2005] FMCAfam 171

FAMILY LAW – PROPERTY – Contributions – redundancy – generally, voluntary redundancy does not involve compensation for future economic loss – wife contributed to husbands redundancy in the same manner that parties jointly contribute to superannuation – where wife claims Kennon adjustment – evidence presented discouraged by Full Court in Kennon – where both parties claim the home – where husband in occupation and has capacity to pay out the wife’s interest – wife opposes superannuation splitting order – rarely is it reasonable for one party to take virtually all of their property entitlements in superannuation, while the other party receives a disproportionate share of the immediately available assets – CHILDREN – contact orders – assessment of risks – children's relationships with their parents are enhanced by having their parent exercise parental authority and responsibility – overnight contact ordered.

Family Law Act 1975
Child Support (Assessment) 1989
Family Law (Superannuation) Regulations 2001

Russell & Russell (1992) FLC 92-877
Farnell & Farnell (1996) FLC 92-681
Burke (1993) FLC 92-553
Hauff and Hauff, (1986) FLC 91-747
In the Marriage of Ferraro (1993) FLC 92-335
Kennon & Kennon (1997) FLC 92-757

In the Marriage of Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335

In the Marriage of Clauson (1995) FLC 92-595

Kowaliw & Kowaliw (1981) FLC 91-092
Myethall (1997) FLC 90-273
Phillips v Phillips [1998] FamCA 1557

Applicant:

I J W

Respondent:

A M D

File Number:

SYM926 of 2004

Judgment of:

Federal Magistrate Ryan

Hearing dates:

15 & 18 February 2005

Delivered at:

Wollongong

Delivered on:

21 February 2005

REPRESENTATION

Counsel for the Applicant:

Mr N. Macpherson

Solicitors for the Applicant:

Johnson Horsley Lawyers

Counsel for the Respondent:

Mr R. Bell

Solicitors for the Respondent:

Rita Thakur & Associates

THE COURT ORDERS THAT BY CONSENT:

The children Emily (not her real name) born in 2000 and Cate (not her real name) born in 2002 reside with the wife.

THE COURT FURTHER ORDERS THAT:

The following contact and parenting orders continue after Order 36 becomes operative unless the contrary is stated in the orders. The husband shall have contact with the children as follows:
(a)Until Cate turns three years old to both children:
(i)Each Monday and Wednesday from 3.00 pm until 7.00 pm; and
(ii)On the first Friday of each month from 6.00 pm until 10.00am Saturday; and
(iii)Each alternate Saturday and Sunday from 9.00 am until 4.00 pm; and
(iv)In the event that the first Friday in any month coincides with a contact weekend Saturday contact is suspended that weekend.
(v)On Father’s Day from 9.00 am until 4.00 pm.
(vi)In the event that contact falls on mother’s day, Sunday contact is suspended that day.
(vii)Unless the parties agree on different arrangements the husband shall collect the children at the start of contact and the wife shall collect the children at the end of contact. When contact starts at the end of the school day…

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: W & D [2005] FMCAfam 171
Case: [2005] FMCAfam 171
Decision Date: 21 February 2005

CaseChat Overview and Summary

This case involved a property settlement and contact arrangements between IJW and AMD following their separation. The court heard evidence from both parties regarding their contributions to the marriage, the husband's voluntary redundancy, and the appropriate division of assets and liabilities. The court also considered the children's best interests in determining contact arrangements. The court found that the husband's contributions to the marriage were greater than the wife's, with a 52 per cent to 48 per cent split. However, the wife was entitled to a 17 per cent adjustment under section 75(2) of the Family Law Act 1975 due to factors such as the financial needs of the parties and the wife's future care of the children. The court ordered that the husband retain the former matrimonial home and pay the wife a lump sum to buy out her interest in the property. The court also ordered that the husband's superannuation be split, with the wife receiving a base amount of $33,955.10 from the husband's BHP Billiton Superannuation Fund. Regarding parenting orders, the court found that the children were ready to commence overnight contact with the husband, subject to certain conditions to reassure the wife about the husband's behaviour during contact. The court made detailed orders for the children's contact with both parents, including provisions for special occasions and school holidays.

Orders