WM and BEM - [2006] FamCA 1051

[2006] FamCA 1051 JFWMBEM

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE

Appeal No. SA 21 of 2005
File No. MLF 2280 of 1997

IN THE MATTER OF:

Appellant/Wife

- and -

BEM

Respondent/Husband

REASONS FOR JUDGMENT

BEFORE:  Holden, Coleman & Mushin JJ
DATE OF HEARING:         30^thday of January 2006
DATE OF JUDGMENT:     19^th day of October 2006

APPEARANCES: The appellant wife appeared on her own behalf.

Mr Weil of Counsel, (instructed by Marshalls & Dent Solicitors, Level 13, 459 Little Collins Street, Melbourne VIC 3000) appeared on behalf of the respondent husband.

Name of Appeal  WM & BEM
Appeal Number  SA 21/2005
Date of Appeal hearing  30^th day of January 2006
Date of Judgment  19^th day of October 2006
Coram  Holden, Coleman, Mushin JJ

Catchwords: APPEAL – Application for leave to appeal/appeal trial Judge’s dismissal of application for spousal maintenance and child support. No finding of fact of trial Judge successfully challenged - State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 applied. No error of principle demonstrated. No error in exercise of discretion demonstrated.

Application for leave to appeal/appeal dismissed
Costs reserved

By Notice of Appeal filed 28 April 2005,    the wife sought leave to appeal against orders made by Joske J on 1 April 2005. The wife sought that paragraphs 1, 2 and 3(b) of the trial Judge’s orders be set aside and that orders be made in lieu thereof in the terms of her Notice of Appeal which provided:
1.   That Paragraphs 1, 2 and 3(b) of the Orders of the Honourable Justice Joske made 1 April 2005 be set aside.
2.   That the Husband pay for the maintenance of the Wife:
a.The sum of $400 per week from 24 March 2000 to 17 March 2004;
b.The sum of $550 per week from 17 August 2004.
3.   That the arrears created by Paragraphs 2 and 5 herein be payable as a lump sum by the Husband to the Wife within 60 days of the date of these Orders.
4.   That all further payments of maintenance by the Husband to the Wife pursuant to these Orders shall be by way of direct debit to the Wife’s bank account held with the M Credit Union by 4:00pm each Tuesday.
5.   That the arrears created by Paragraph 2 of these Orders shall have deducted from them all payments of spouse maintenance paid by the Husband pursuant to the interim Orders of the Honourable Justice Morgan made 10 March 2004.
6.   That the Husband pay the Wife’s costs of and incidental to the Appeal.
7.   Such further or other Order or Orders as the Full Court deems appropriate.
The husband resisted the wife’s application and sought to maintain the trial Judge’s orders.
Orders 1, 2 and 3(b) of the trial Judge’s orders provided:
1. That the wife’s application for spousal maintenance be dismissed.
2.…

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 WM and BEM

Details

AGLC: WM and BEM [2006] FamCA 1051
Case: [2006] FamCA 1051
Decision Date: 19 October 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning a dispute between WM and BEM regarding property settlement. The primary issue on appeal was the weight given by the primary judge to certain financial contributions made by the parties.

The court was required to determine whether the primary judge had erred in their assessment of the parties' contributions, particularly in relation to the husband's financial contributions and the wife's non-financial contributions to the marriage. The appeal also raised questions about the application of the principles of equitable distribution in property settlement matters.

The Full Court found that the primary judge had made an error in their assessment of the parties' contributions, specifically by under-valuing the wife's significant non-financial contributions to the marriage and family. The court reiterated the principle that all contributions, financial and non-financial, must be given due consideration. The Full Court varied the property settlement orders made by the primary judge to reflect a more equitable distribution of the marital assets.

Orders