FAMILY COURT OF AUSTRALIA
| WYNONA & FRIEND | [2011] FamCAFC 6 |
| FAMILY LAW - APPEAL – CHILDREN – Parenting Orders – Whether Federal Magistrate erred in failing to consider whether sole parental responsibility was in best interests of the children – Whether Federal Magistrate erred in finding that an equal shared time arrangement was not in best interest of the children – Whether Federal Magistrate failed to give sufficient weight to the Family Consultant’s report – Where credit and factual findings were open to the Federal Magistrate on the evidence – Discretionary judgment – No appealable error established. FAMILY LAW - APPEAL – PROPERTY – Whether the Federal Magistrate left certain assets and liabilities out of the list of assets and liabilities – Whether the Federal Magistrate erred in failing to make consent orders – No appealable error established. FAMILY LAW - APPEAL – PROPERTY ORDERS – Just and equitable – Whether the adjustment made under s 75(2) of the Family Law Act 1975 (Cth) was not supported by the evidence or was manifestly excessive – Whether the property orders were just and equitable – Where the orders had the effect of the wife receiving approximately one third of the total assets more than the husband – Where the Federal Magistrate failed to consider whether the orders where just and equitable in light of the resulting monetary distribution to each of the parties – Appealable error established – Matter re-determined. FAMILY LAW - APPEAL – CORRIGENDUM – Federal Magistrate’s judgment was amended by way of “corrigendum” 8 months after initial judgment was published – Meaning of “corrigendum” considered – Beazley JA’s comments in Todorovic v Moussa (2001) 53 NSWLR 463 on amending reserved judgments discussed – The editing of ex tempore reasons and the revision of judgments under the “slip rule” differentiated – Table included in “corrigendum” contained no matter of substance – The items published in the corrigendum were not disputed on appeal – No appealable error. |
| District Court Act 1973 (NSW) Federal Magistrates Court Rules 2001, r 16.05(2)(e) |
| A v J (1995) FLC 92-619 Allesch v Maunz (2000) 203 CLR 172 Bar Mordecai v Rotman [2000] NSWCA 123 Burrell v The Queen (2008) 238 CLR 218 Clauson & Clauson (1995) FLC 92-595 DJL v Central Authority (1997) 201 CLR 226 Essex & Essex [2009] FamCAFC 236 Fox & Percy (2003) 214 CLR 118 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 House v The King (1936) 55 CLR 499 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 M & M (2006) 36 Fam LR 97 Monie v Commonwealth of Australia [2005] NSWCA 25 Neil v Nott (1994) 121 ALR 148 Newmont Yandal Operations Pty Ltd v J Aron Corp and Goldman Sachs Group Inc[2007] NSWCA 195 Palmer v Clarke (1989) 10 NSWLR 158 Rollings & Rollings (2009) 230… |
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- AGLC
- Wynona v Friend [2011] FamCAFC 6
- Case
- [2011] FamCAFC 6
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1.
The appeal is allowed in part.
2.
Order 1 of the orders made by Federal Magistrate Jarrett on 12 February 2010 restraining payment to the wife to the extent of $62,258.39 is set aside.
3.
Order 14 (e) and (f), and Order 15 of the orders made by Federal Magistrate Jarrett on 3 July 2009 are set aside and the following orders substituted in lieu:
14. (e) Pursuant to s 79 of the Family Law Act 1975 (Cth) and subject to any payment made or due to be paid pursuant to Orders 14(a), 16, 17 and 18 of the orders of Federal Magistrate Jarrett of 3 July 2009 the parties’ assets and liabilities as set out in paragraph 190 of these reasons adjusted for any sum already received by them shall be divided between them as to 53 per cent thereof to the wife and 47 per cent thereof to the husband;
15. The parties shall within 21 days of the date of these orders do all acts and things necessary to authorise the holder of the net proceeds of sale of the matrimonial home […] and the [NC] property to pay such sum to each party as is necessary to comply with Order 14(e) of these orders.
4.
Order 20(b) of the Orders made by Federal Magistrate Jarrett on 3 July 2009 is varied by deleting “63%” and substituting in lieu “53 per cent” and further deleting “37%” and substituting in lieu “47 per cent”.
5.
That each party pay their own costs of and incidental to the appeal.
6.
The husband shall file with the Northern Appeal Registrar and serve on the wife’s solicitors any written submissions in respect of the costs appeal (NA 12 of 2010) on which he seeks to rely on or before 17 February 2011.
7.
The wife shall file with the Northern Appeal Registrar, and serve on the husband any written submissions in respect of the costs appeal on which she seeks to rely on within 21 days of receipt of husband's written submissions.
8.
The husband shall file with the Northern Appeal Registrar and serve on the wife’s solicitors any written submissions in reply to the wife’s submissions within a further 14 days.
9.
Each party shall endorse on the coversheet of the submissions the date of service on the other party.
10.
The costs appeal shall be determined without the necessity for further appearance by either party by a Full Court nominated by the Chief Justice, the Honourable Justice Bryant.
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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