Wilson and Wilson

Case [2013] FamCAFC 43


FAMILY COURT OF AUSTRALIA

WILSON & WILSON [2013] FamCAFC 43

FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Appeal from a decision of a Federal Magistrate allowing the respondent mother to relocate the child’s residence from Sydney to Newcastle – Where the child has ADHD – Where the orders reduced the child’s time spent with the father from weekly to fortnightly and required lengthy car travel – Where the Federal Magistrate made orders for time to be spent with the father in Newcastle, which were not sought by the parties and her Honour had accepted at the trial as impossible – Whether the Federal Magistrate erred in allowing the relocation application when the expert evidence was that such a course would negatively impact on the child’s meaningful relationship with the appellant father – Whether the Federal Magistrate made findings not available on the evidence – Where the possibility and certainty of a negative impact on the child-father meaningful relationship as a result of relocation were plainly demonstrated by the expert’s evidence – Where the expert’s opinion was also that relocation itself held other risks for the child, independent of the meaningful relationship and time spent with the father – Where in oral evidence the expert provided further evidence which she used to reinforce the opinions she express in her report – Where there was no contrary expert opinion – Where the reasons amounted to an oversimplification of the expert’s evidence – Where the weight of the expert evidence was contrary to the material findings of the Federal Magistrate – Where the Federal Magistrate failed to provide adequate reasons for not accepting the expert’s opinion – Appealable error established – Appeal allowed and relocation matter remitted for rehearing.

FAMILY LAW – APPEAL – PROPERTY – Where the father appealed against property orders which reflected a 15 per cent adjustment to the mother for s 75(2) factors – Whether the adjustment to the mother was manifestly excessive – Where the Federal Magistrate adopted a one pool approach – Where neither party asked for a split of superannuation assets – Where it is difficult to see how the composition of the property was taken into account – Where the outcome of a new trial regarding the relocation issue may have a significant impact on the parties’ financial circumstances – Where fairness to both parties requires the appeal against the property orders to be allowed and the matter reheard at the same time as the parenting proceedings – Appeal allowed and matter remitted for rehearing.

Family Law Act 1975 (Cth) ss 60CC, 75(2)

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Bennett and Bennett (1991) FLC 92-191
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Friscioni & Friscioni [2010] FamCAFC 108
Hall and Hall (1979) FLC 90-713
Heaton and Heaton [2012] FamCAFC
House v The King (1936) 55 CLR 499
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
MRR v GRR (2010) 240 CLR 461
Soulemezis v Dudley…

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AGLC
WILSON & WILSON [2013] FamCAFC 43
Case
[2013] FamCAFC 43
Decision Date

CaseChat Overview and Summary

The appeal in Wilson and Wilson was heard by the Family Court of Australia. The father, the appellant, appealed against the orders made by Federal Magistrate Henderson concerning the property settlement and the mother's application to change the residence of the child to Newcastle. The mother, the respondent, contested the appeal.

The central legal issues in this case were whether the Federal Magistrate's orders were correct and whether the orders regarding the property settlement and the residence of the child should be remitted for rehearing. The court needed to consider whether the orders made by Federal Magistrate Henderson were appropriate and if the proceedings should be remitted due to potential bias.

The court found that there was a possibility of bias on the part of Federal Magistrate Henderson, which warranted the setting aside of the orders in question. Consequently, the appeal was allowed, and the orders in paragraphs 3, 4, 5, 6, 7, 8, 9, 12(d) and 13 made by Federal Magistrate Henderson on 5 April 2012 were set aside. The proceedings in relation to property settlement and the mother's application to change the residence of the child to Newcastle were remitted for rehearing by a Federal Magistrate other than Federal Magistrate Henderson. There was no order as to the costs of the appeal. However, the appellant father, the respondent mother, and the parties were all granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

1.

The appeal be allowed.

2.

The orders in paragraphs 3, 4, 5, 6, 7, 8, 9, 12(d) and 13 made by

Federal Magistrate Henderson on 5 April 2012 be set aside.

3.

The proceedings in relation to property settlement and the mother’s application to change the residence of the child to Newcastle (and consequential orders) be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Henderson.

4.

There be no order as to the costs of the appeal.

5.

The appellant father be granted a costs certificate pursuant to the provisions of

s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by him in relation to the appeal.

6.

The respondent mother be granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by her in relation to the appeal.

7.

The parties be granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father and respondent mother in respect of the costs incurred by them in relation to the

rehearing.

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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