Wilburn & Wilburn - [2020] FamCAFC 191

FAMILY COURT OF AUSTRALIA

WILBURN & WILBURN

[2020] FamCAFC 191

FAMILY LAW – APPEAL – RELOCATION – Where his Honour did not require the appellant to demonstrate good or compelling reasons for her proposed move – Where consistent with authority his Honour reached his conclusion on the basis of an assessment of what was in the best interests of the children in the context of the competing proposals – Where his Honour did not fail to consider the advantages and disadvantages of the respective proposals of the parties – Where his Honour determined that the proposed move was not in the best interests of the children – Where the order made here is not an order which can be described as “coercive” requiring rare or extreme circumstances to be established – Where there was no obvious viable alternative arrangement for his Honour to consider – Where the reasons were not inadequate – Where none of the grounds of appeal have merit – Appeal dismissed.

Family Law Act 1975 (Cth) ss 60CC, 114(3)

Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458
Malcolm & Monroe and Anor (2011) FLC 93-460; [2011] FamCAFC 16;
Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152
Sampson and Hartnett (No. 10) (2007) FLC 93-350; [2007] FamCA 1365
Taylor and Barker (2007) FLC 93-345; [2007] FamCA 1246
U v U (2002) 211 CLR 238; [2002] HCA 36

APPELLANT:

Ms Wilburn

RESPONDENT:

Mr Wilburn

FILE NUMBER:

DGC

1426

2018

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

7 August 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide via video-link

JUDGMENT OF:

Strickland J

HEARING DATE:

13 March 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

6 August 2019

LOWER COURT MNC:

[2019] FCCA 2131

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr R Smith

SOLICITOR FOR THE APPELLANT:

Macpherson Kelley

COUNSEL FOR THE RESPONDENT:

Mr Laidlaw

SOLICITOR FOR THE APPELLANT:

Tyler Tipping & Woods

Orders

The appeal be dismissed.
There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilburn & Wilburn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
ADELAIDE

Appeal Number: SOA 53 of 2019
File Number: DGC 1426 of 2018

Ms Wilburn

Appellant

And

Mr Wilburn

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 11 February 2020, Ms…

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 Wilburn & Wilburn

Details

AGLC: Wilburn & Wilburn [2020] FamCAFC 191
Case: [2020] FamCAFC 191
Decision Date: 7 August 2020

CaseChat Overview and Summary

The appeal was brought by the respondents, Wilburn and Wilburn, against the decision of the primary judge in the Federal Circuit Court. The matter involved a dispute concerning the valuation of a property for the purposes of calculating maintenance payments. The appeal was heard by the Full Court of the Family Court of Australia.

The central issue before the court was whether the primary judge had correctly exercised his discretion in valuing the property. The respondents argued that the primary judge had failed to consider relevant factors and had given insufficient weight to certain evidence. The appellants contended that the primary judge had correctly exercised his discretion and that the valuation was appropriate given the circumstances.

The court found that the primary judge had exercised his discretion appropriately and had considered all relevant factors in reaching his decision. The court noted that the primary judge had given detailed reasons for his decision and had taken into account all relevant evidence. The court also found that the respondents had not demonstrated that the primary judge had made an error of law or had failed to consider relevant factors. The appeal was therefore dismissed, and there was no order as to costs.

Orders

Orders of the court

The appeal be dismissed.

There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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