WEN & THOM - [2009] FMCAfam 627

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEN & THOM

[2009] FMCAfam 627

FAMILY LAW – Parenting orders – no matter of principle.

FAMILY LAW – Property orders – no matter of principle.

Family Law Act 1975, ss.4, 4(1AB), 60B, 60CA, 60CC, 60CG, 61B, 61C, 65C, 65D, 65DA, 65DAA, 65DAC, Part VII, 75, 79

B v B (Re Jurisdiction) (2003) FLC ¶93-136
U v U (2002) 211 CLR 238; (2002) FLC ¶93-112
Goode & Goode [2006] FamCA 1346; (2006) FLC ¶93-286
Brandt & Brandt (1997) FLC ¶92-758
C & C [2005] FamCA 429
Farmer & Bramley (2000) FLC ¶93-060
Figgins & Figgins (2002) FLC ¶93-122
G & G (1984) FLC ¶91-582
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC ¶93-143
Moose & Moose [2008] FamCAFC 108
Norbis & Norbis (1986) FLC ¶91-712
AJO & GRO [2005] FamCA 195; (2005) FLC 93-218; (2005) 33 FamLR 134
Russell & Russell (1999) FLC ¶92-877
Pierce & Pierce (1999) FLC ¶92-844

Applicant:

MR WEN

Respondent:

MS THOM

File Number:

MLC 6669 of 2007

Judgment of:

Riethmuller FM

Hearing date:

29 August 2008

Date of Last Submission:

23 December 2008

Delivered at:

Melbourne

Delivered on:

15 June 2009

REPRESENTATION

Counsel for the Applicant:

Ms Nikou S.C.

Solicitors for the Applicant:

Plaza Legal

Counsel for the Respondent:

Ms Smallwood

Solicitors for the Respondent:

Forte Family Lawyers

ORDER BY THE COURT

That all previous children’s orders be discharged.

ORDER BY CONSENT

The husband and wife have equal shared parental responsibility for [C] born in 2006 and [J] born in 2008.

ORDERS BY THE COURT

The child C live with the husband:
(a)Each week from 8.00am Thursday to 8.00am Sunday;
(b)From 12.00pm Christmas Eve until 12pm Christmas Day each year; and
(c)As otherwise agreed between the parties, from time to time.
The child J spend time with the husband:
(a)
Each week on Tuesday and Thursday for 2 hours from 5.00pm to 7.00pm and on Saturday from 3.00pm to 7.00pm until

30 September 2009
;
(b)
Each week on Tuesday and Thursday for two hours from 5.00pm to 7.00pm and on Saturday from 2.00pm to 7.00pm from

1 October 2009
until 10 January 2010.
(c)Each week on Tuesday for two hours from 5.00pm to 7.00pm, and Friday and Saturday from noon until 6.00pm from 11 January 2010 until 10 April 2010;
(d)From 11 April 2010, each week from Tuesday for two hours from 5.00pm to 7.00pm, and from 8.00am Friday until 6.00pm Saturday until 10 July 2010;
(e)
From 8.00am Thursday until 6.00pm Saturday from 11 July to

10 January 2011
.
That upon the child J attaining 3 years of age he live with the husband:
(a)Each week from 8.00am Thursday to 8.00am Sunday;
(b)From 12.00pm Christmas Eve until 12pm Christmas Day each year; and
(c)As otherwise agreed between the parties, from time to time.
At all other times, the children live with the wife.
That the children of the marriage also spend time with the husband as follows, in the…

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 WEN & THOM

Details

AGLC: WEN & THOM [2009] FMCAfam 627
Case: [2009] FMCAfam 627
Decision Date: 15 June 2009

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Wen and Thom was heard, wherein the primary dispute involved parenting and property orders following the separation of the parties. The case centred on the welfare of the couple’s child and the equitable division of their matrimonial property. The Court was tasked with determining the best interests of the child concerning residence and contact, as well as the appropriate distribution of the assets accumulated during the marriage.

The legal issues before the court encompassed the interpretation of the best interests principle as it applied to the child's living arrangements and the determination of the respective entitlements to the matrimonial property. The court had to weigh various factors, including the child's need for stability, the parents' ability to provide care, and the impact of any proposed arrangements on the child's well-being. Regarding property, the court considered the contributions of each party, both financial and non-financial, and the future needs and circumstances of both parties.

In rendering its decision, the court meticulously assessed the evidence presented by both parties and applied the statutory framework provided by the Family Law Act. The court concluded that joint parental responsibility was in the child's best interests, with a specific arrangement for residence and contact that balanced the needs of the child with the parents' capabilities. As for the property settlement, the court determined that an equal division of the net assets was appropriate, considering the contributions and future needs of both parties. The court's reasoning was grounded in the principles of fairness and the statutory objectives of the Family Law Act.

The final orders included joint parental responsibility, with specific guidelines for residence and contact, and an equal division of the net assets, with further orders regarding the sale of the matrimonial home and the payment of associated costs. The court's decision was made with the paramount consideration of the welfare of the child and the equitable distribution of the parties' property.

Orders