FAMILY COURT OF AUSTRALIA
| WARNOLD & BLEAUCHAMP | [2010] FamCAFC 154 |
| FAMILY LAW - APPEAL – PARENTING – Whether the trial Judge erred in failing to make orders that the existing daily arrangements for the child should continue – Where neither party sought orders which reflected the daily arrangements for the child – Where there was uncertainty as to where each party would live – No appealable error – Whether the trial Judge erred in failing to make an order that the child spend time with the father each alternate Thursday – Where the parties agreed to amend the parenting orders by consent – Appeal allowed in part. FAMILY LAW - APPEAL – JURISDICTION – Where neither party disputed that the Full Court was the appropriate court to hear the appeal – The trial Judge and the Full Court are obliged to apply the law in force at the relevant date in the Australian Capital Territory – The Full Court can re-determine the matter under the relevant provisions of the Domestic Relationships Act 1994 (ACT) if appealable error established. FAMILY LAW - APPEAL – PROPERTY – Whether the trial Judge erred in his evaluation of the parties’ contributions – Whether the trial Judge erred in failing to give any or sufficient weight to the father’s post-separation contribution of the property occupied by the mother – Whether the trial Judge’s evaluation of the parties’ contributions was plainly wrong – Where the trial Judge was conscious of the requirement of s 15 of the Domestic Relationships Act 1994 (ACT) – Where there was no dispute that at the commencement of the parties’ relationship there was a significant imbalance in the parties’ initial contributions – Where the initial contributions could not have been given appropriate weight given the overall contribution findings – Where the contribution based assessment was outside the reasonable ambit of discretion – Appealable error established. FAMILY LAW - APPEAL – PROPERTY – Whether the trial Judge erred in making a further s 19(2) adjustment in the mother’s favour – Where the adjustment was not outside the reasonable ambit of discretion – No appealable error established. FAMILY LAW - APPEAL – RE-DETERMINATION – Where the father’s contributions post-separation outweighed the mother’s – Where contributions assessed to be 82.5 per cent to the father and 17.5 per cent to the mother – Where the father’s property and financial resources significantly outstrip those of the mother – Where the mother’s parenting obligations involve her in greater periods of time caring for the child – Adjustment of 10 per cent in the mother’s favour appropriate – Where the parties’ entitlements are 72.5 per cent to the father and 27.5 per cent to the mother. FAMILY LAW - APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the mother conceded an error in the accidental omission of an investment from the list of assets and liabilities provided to the trial Judge – Where there was no dispute the father paid mortgage and outgoings in respect of… |
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- WARNOLD & BLEAUCHAMP [2010] FamCAFC 154
- Case
- [2010] FamCAFC 154
- Decision Date
CaseChat Overview and Summary
The legal issues at the core of this appeal revolved around whether the trial judge erred in his decision-making process. Specifically, the court examined whether the trial judge failed to maintain the existing daily arrangements for the child and whether he erred in not ordering that the child spend time with the father each alternate Thursday. Additionally, the appeal considered whether the trial judge made an error in his evaluation of the parties' contributions to the property pool and whether the subsequent property adjustments were appropriate. The court also reviewed the jurisdiction to hear the appeal and the appropriate application of the law in force at the relevant date.
In its reasoning, the court found that while the trial judge did not err in maintaining the existing daily arrangements for the child, there was an error in not ordering that the child spend time with the father each alternate Thursday. The court further determined that the trial judge's evaluation of the parties' property contributions was flawed and outside the reasonable ambit of discretion. Consequently, the court allowed the appeal in part and varied the property orders. The court also dismissed the father’s application to adduce further evidence, except for the agreed and undisputed evidence regarding the mother's Netwealth investment and payment of expenses.
The final orders of the court included allowing the appeal against the parenting orders in part by consent, with the addition that the child would spend time with the father each alternate Thursday. The property orders were also varied to reflect a more equitable distribution based on the court's re-assessment of the parties' contributions. The court also dismissed the father’s application to adduce further evidence, except for the agreed and undisputed evidence. The parties were given a specific timetable to file written submissions regarding the costs of the property appeal.
Orders
Orders of the court
1.
By consent, the appeal against the parenting orders of the Honourable Deputy Chief Justice Faulks made 25 March 2009 be allowed in part.
2.
By consent, and in addition to the parenting orders made on 25 March 2009, the child shall spend time with the father each alternate Thursday from the conclusion of school, or such other time as may be agreed between the parties, and commencement of school the following day.
3.
The father’s application to adduce further evidence, except in respect of the mother’s Netwealth investment and payment of expenses associated with the R property, is dismissed
4.
The appeal against the property orders of the Honourable Deputy Chief Justice Faulks made 25 March 2009 under the provisions of the Domestic Relationships Act 1994 (ACT) be allowed.
5.
The property orders made by the Honourable Deputy Chief Justice Faulks on 25 March 2009 be varied as follows:
(a) Order 9(d) be varied by deleting where appearing therein “35 per cent” and substituting in lieu “27.5 per cent”;
(b) Order 9(e) be varied by deleting where appearing therein “35 per cent” and substituting in lieu “27.5 per cent”; and
(c) Order 9(f) be varied by deleting the words “the sum of $390,000 less 35 per cent of the sales costs associated with the auction” and substituting in lieu “the sum of $289,165.32 less 27.5 per cent of the sales costs associated with the auction”.
6.
The parties are at liberty to file written submissions with regard to the costs of the property appeal in accordance with the following timetable:
(a) on behalf of the appellant within 21 days of the date hereof;
(b) on behalf of the respondent in response thereto within 21 days thereafter;
(c) on behalf of the appellant in reply thereto within seven days thereafter; and
(d) that each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
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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