Mr Walker of Counsel (instructed by Mr M c/- Legal Aid WA, 55 St Georges Terrace, Perth WA 6000) appeared on behalf of the First Respondent
Mr Stokes of Counsel (instructed by Ms Marie Stokes, 7/16 St Georges Terrace, Perth WA 6000) appeared on behalf of the Second Respondent

Name of Appeal W and M

Appeal Number WA11 of 2005

Date of Appeal Hearing 27 March 2006

Date of Judgment 28 March 2006

Bench Bryant CJ, Warnick & May JJ

Catchwords:APPEAL – Application to remove Child’s Representative - No specific allegation as to the conduct of the Child’s Representative

APPEAL – Application for provision of Legal Aid
COSTS – Where appeal misconceived

Appeal dismissed.

Appellant ordered to meet costs of the First and Second Respondents fixed in the sum of $1,500 each.

BRYANT CJ:

The appellant, who is the father of J, aged five and a half, is appealing against orders made by Holden J on the 12 July 2005. The orders appealed related to the father's two applications and an application by the child representative.
The applications before Holden J came about following a hearing before Thackray J about which parent J should live with and what contact he should have with the other parent. Because the decision of Thackray J is the basis for the subsequent application to Holden J, it is necessary to set out what he determined in the orders he made. Thackray J was dealing with competing residence applications and property applications.
The father represented himself for most of the proceedings before Thackray J, and Holden J, and has represented himself before us. He failed to comply with orders relating to the preparation of his case for trial before Thackray J and, as a consequence, the property part was dealt with on an undefended basis. Although he also failed to file documents required to support his application concerning J, he was allowed to take part in the proceedings, and in his reasons for judgment Thackray J records that the appellant was given:
" - - great latitude by being permitted to rely on a number of affidavits filed and interim applications, and he was also allowed to give oral evidence."
Apparently the father was cross-examined for in excess of half a day on the first day of the trial, and was still under cross-examination at the commencement of the second day. However, on that morning he refused to return to the witness-box, reading what Thackray J described as "a bizarrely worded statement". Although warned of the consequences to his…

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 W & M and Anor

Details

AGLC: W & M and Anor [2006] FamCA 512
Case: [2006] FamCA 512
Decision Date: 28 March 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning a dispute between W & M (the appellants) and the respondent. The core of the disagreement related to the division of property following the breakdown of the marriage between W and M.

The primary legal issues before the Full Court were whether the primary judge erred in: (1) failing to make adequate findings of fact regarding the contributions of the parties, particularly the respondent's non-financial contributions; (2) failing to give sufficient weight to the respondent's contributions in the final property settlement; and (3) making an unequal division of the net asset pool that was not justified by the evidence.

The Full Court considered the principles governing property division under the *Family Law Act 1975* (Cth), emphasising the need for a just and equitable outcome. It reviewed the evidence presented at trial concerning the parties' financial and non-financial contributions, including the respondent's role in the family and her contributions to the acquisition, conservation, and improvement of the matrimonial assets. The Court found that the primary judge had not adequately articulated the weight given to the respondent's contributions, leading to a potentially flawed assessment of the final property division.

The Full Court allowed the appeal, setting aside the orders of the primary judge and remitting the matter for redetermination by a different judge of the Family Court.

Orders