Worth and Worth & Anor - [2019] FamCAFC 40

FAMILY COURT OF AUSTRALIA

WORTH & WORTH AND ANOR

[2019] FamCAFC 40

FAMILY LAW – APPEAL – PARENTING – Where there was no error by the trial judge in ordering that the wife have sole parental responsibility for the two children of the marriage as a result of the high conflict between the parties and the fact that both children would be residing with the wife – Where there was no error by the trial judge in ordering that the youngest child reside with the wife – Where there is no merit in any of the complaints made by the appellant – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where there was no error by the trial judge in his treatment of the wife’s evidence as to her expenditure on legal fees and her disclosure in relation to the same – Where there was no error by the trial judge in his treatment of “add-backs” – Where there was no error by the trial judge in his assessment of the respective contributions of the parties – Where the alleged unethical conduct by the wife’s solicitor does not sound in error by the trial judge – Where there is no merit in any of the complaints made by the appellant – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent sought an order for costs – Where the Independent Children’s Lawyer did not seek an order for costs against the appellant in the event the appeal was dismissed – Where the respondent’s costs sought were based on offers made by her – Where it was accepted that written submissions as to costs would be required once the result of the appeal was known – Orders made setting out a regime for the filing of written submissions.

Family Law Act 1975 (Cth) ss 4AB, 61DA(1), 75(2) & Part VIII

Antmann and Antmann (1980) FLC 90-908; [1980] FamCA 64
Bircher & Bircher (2016) FLC 93-721; [2016] FamCAFC 123
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Kowaliw and Kowaliw (1981) FLC 91-092; [1981] FamCA 70

APPELLANT:

Mr Worth

RESPONDENT:

Ms Worth

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

NOA

2017

APPEAL NUMBER:

BRC

1771

2014

DATE DELIVERED:

8 March 2019

PLACE DELIVERED:

TBC

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Kent &
Hogan JJ

HEARING DATE:

18 May 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 April 2017

LOWER COURT MNC:

[2017] FamCA 227

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr George

SOLICITOR FOR THE RESPONDENT:

Rosen Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid Queensland

Orders

The appeal be dismissed.
Within 21 days of the date hereof 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 Worth and Worth & Anor

Details

AGLC: Worth and Worth & Anor [2019] FamCAFC 40
Case: [2019] FamCAFC 40
Decision Date: 8 March 2019

CaseChat Overview and Summary

Worth and Worth & Anor involved an appeal against decisions made by a family court in relation to parenting arrangements and property settlement. The husband appealed the trial judge's decisions, which included awarding the wife sole parental responsibility for their two children and ordering that the youngest child reside with the wife. The husband also contested the trial judge's handling of the wife's evidence regarding legal fees and disclosure, as well as the treatment of "add-backs" and the assessment of the parties' respective contributions. Additionally, the husband raised complaints about the wife's solicitor's conduct, which did not result in any error by the trial judge.

The court found that there was no error in the trial judge's decisions on parenting arrangements, given the high conflict between the parties and the best interests of the children. The court also upheld the trial judge's handling of the wife's evidence, treatment of "add-backs," and assessment of the parties' contributions, finding no merit in the husband's complaints. Regarding the wife's solicitor's conduct, the court concluded that it did not amount to error by the trial judge. Consequently, the appeal was dismissed.

The court further ordered the wife to file written submissions regarding costs within 21 days of the date of the judgment, with the husband to respond within 21 days of receiving the wife's submissions. The wife was then to file any reply submissions within 14 days of receiving the husband's response. The form of the order was subject to the entry of the order in the Court’s records.

In summary, the appeal was dismissed, and the court set out a timeline for the submission of written costs arguments between the parties.

Orders

Orders of the court

The appeal be dismissed.

Within 21 days of the date hereof the respondent wife file and serve upon the appellant husband written submissions in relation to the issue of costs.

Within 21 days of the receipt by the appellant husband of the written submissions of the respondent wife, the appellant husband file and serve on the respondent wife any written submissions in response.

Within 14 days of the receipt of any submissions in response filed by the appellant husband, the respondent wife file and serve on the appellant husband any written submissions in reply.

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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