FAMILY COURT OF AUSTRALIA
| YATES & YATES | [2012] FamCAFC 138 |
| FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – CHILDREN – where the appellant asserts that the trial judge minimised the impact upon the child of the family violence perpetrated by the respondent and did not “properly use” the evidence of the expert witnesses – where there is no error by the trial judge here – where the appellant challenges the trial judge’s understanding of and definition of the position of the appellant and Independent Children’s Lawyer as to the issue of equal time – where in defining and approaching the issues in dispute the trial judge misdirected himself and fell into error – where there is merit in this ground of appeal. FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – PROPERTY SETTLEMENT – whether proceeds of an insurance policy should be treated as a contribution made by the respondent or by the parties jointly – where the use of the funds received from the insurance policy, paid out as a result of the respondent being diagnosed with cancer, occurred prior to separation – where there was a paucity of evidence in relation to the policy – where the appellant, unlike the respondent, made no submissions to the trial judge about how these proceeds should be treated – where there is no merit in this ground of appeal – where the appellant complains that the property division was “manifestly excessive” in favour of the respondent – where no appellable error by the trial judge has been established – where there is no merit in this ground of appeal – where the appellant says the trial judge erred in his assessment of the health of the respondent and the future earning capacities of the parties given the evidence before him – where on the evidence there was no basis for the trial judge to make an adjustment of 10 per cent in favour of the respondent – where there is merit in this ground of appeal. FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – RE-HEARING – where in relation to parenting issues the appellant and the Independent Children’s Lawyer sought a re-exercise of the discretion in the event that the appeal was successful – where the respondent sought that the proceedings be remitted for re-hearing – where in relation to the property settlement proceedings both parties sought a re-exercise of the discretion – parenting and property settlement issues be remitted for partial re-hearing, on clearly defined issues, before a judge other than the trial judge. FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – where in the event that the appeal was successful the appellant sought an order for costs and if no order was made sought costs certificates – where in the event that the appeal was successful the respondent and the Independent Children’s Lawyer sought costs certificates including for any re-hearing – where no order for costs in favour of the… |
Continue reading Yates & Yates
Sign in free to access the full text
- AGLC
- Yates & Yates [2012] FamCAFC 138
- Case
- [2012] FamCAFC 138
- Decision Date
CaseChat Overview and Summary
The court identified several legal issues, including whether the trial judge appropriately considered the impact of family violence, correctly understood the roles of the parties, and accurately assessed the property settlement and health-related factors. The court found merit in the appellant's argument that the trial judge misdirected himself in defining the roles of the parties and erred in his assessment of the health of the respondent. However, the court found no error in the trial judge’s consideration of family violence and the treatment of insurance policy proceeds.
The appeal was allowed, and certain orders made by the trial judge were set aside. The parenting arrangements were modified, with the child to live with the wife primarily and have a fortnightly schedule with the husband. The property settlement orders were to be re-heard to determine the appropriate adjustment to the contribution-based entitlement of the parties. The court also addressed the issue of costs, granting costs certificates to both parties for the appeal and re-hearing, while leaving open the possibility for the Independent Children’s Lawyer to seek costs if they pursued an application.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Orders 3, 4 and 5 of the orders made by Benjamin J on 7 September 2010 be set aside.
3.
Pending further order of the Court the child shall live with the wife except as otherwise provided in Order 4 of these orders, or as agreed in writing between the parties.
4.
Pending further order of the Court the child shall live with and communicate with the husband as follows:
(a) During school term on a 2 week cycle:-
i. in week one from after school on Friday until the commencement of school on Monday morning, extending to the commencement of school on Tuesday morning in the event that the Monday is a public holiday or a student free day.
ii. in week two from after school on Wednesday to the commencement of school on Friday morning.
iii. such alternate fortnightly cycle shall commence on the first Friday after the commencement of each school term (and including the Easter school break) if the child was primarily with the wife for the last week of the preceding school holiday period.
iv. such alternate fortnightly cycle shall commence on the second Friday after the commencement of each school term (and including the Easter school break) if the child was primarily with the husband for the last week of the preceding school holiday period, provided that in this event the week 2 of the fortnight cycle shall apply in the first week of term.
5.
The percentage entitlement or division to be applied to the assets of the parties or either of them as specified in Orders 16(e)viii, 18(a), 19(e)iv and 19(e)v of the orders made by Benjamin J on 7 September 2010 be deleted, and be replaced with such percentage entitlement or division as may be determined at the partial re-hearing to take place in accordance with the following Order.
6.
The proceedings for parenting orders and for property settlement orders be remitted for a partial re-hearing by a single judge of the Family Court of Australia with priority, such partial re-hearing to be concluded within and subject to the following notations and conditions:
Parenting
(a) The issue to be determined is whether in each fortnight the child should spend nine nights with the wife and five nights with the husband or equal time with each parent.
(b) The starting point for a determination of this issue shall be the facts in existence at the date of the hearing before Benjamin J, and as were found by Benjamin J.
(c) The only further facts to be considered in that determination are to be any relevant facts arising subsequent to the date of the hearing before Benjamin J.
Property settlement
(d) The issue to be determined is what if any adjustment should be made to the contribution-based entitlement of the parties as found by Benjamin J as a result of a consideration of the relevant s 75(2) factors.
(e) For the purposes of the partial re-hearing the net asset pool is to be as found by Benjamin J and the respective contributions of the parties are also to be as found by Benjamin J.
7.
The husband and the wife each bear their own costs.
8.
The court grants to the husband a costs certificate pursuant to the provisions of section 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 husband in respect of the costs incurred by the husband in relation to the appeal.
9.
The Court grants to the husband a costs certificate pursuant to the provisions of section 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 husband in respect to such part as the Attorney-General considers appropriate of any costs incurred by the husband in relation to the new trial.
10.
The Court grants to the wife a costs certificate pursuant to the provisions of section 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 wife in respect of the costs incurred by the wife in relation to the appeal.
11.
The Court grants to the wife a costs certificate pursuant to the provisions of section 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 wife in respect to such part as the Attorney-General considers appropriate of any costs incurred by the wife in relation to the new trial.
12.
In the event that the Independent Children’s Lawyer seeks to pursue an application for costs certificates pursuant to the provisions of sections 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth), within 21 days of the date of these orders the Independent Children’s Lawyer file written submissions in support of such application and serve the same upon the other parties.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.