ACKLAND & ACKLAND - [2015] FCCA 2035

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACKLAND & ACKLAND

[2015] FCCA 2035

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – equal shared parental responsibility – one child aged fifteen years – Child Dispute Conference – whether Conference should be child inclusive due to daughter’s strained relationship with her father.

FAMILY LAW – Property – injunction – exclusive occupation – exclusive occupation of former matrimonial home – husband to have exclusive occupation of another property – orders by consent.

FAMILY LAW – Maintenance – spousal maintenance – where husband consents to pay spousal maintenance for six months.

Legislation:
Family Law Act 1975 (Cth), ss.11C, 11F, 60CA, 60CC, 61DA, 61DB, 62G, 65DAA, 68L, 74, 114

Federal Circuit Court Rules 2001, r.15.09

Cases cited:
M & DB [2006] FamCA 1380; (2006) FLC 93-293; (2007) 36 Fam LR 454
Sieling & Sieling (1979) 4 Fam LR 713; FLC 90-627
Waugh & Waugh [2000] FamCA 1183; (2000) 27 Fam LR 63; FLC 93-052
Yunghanns & Yunghanns [1999] FamCA 64; (1999) 24 Fam LR 400; FLC 92-836

Applicant:

MR ACKLAND

Respondent:

MS ACKLAND

File Number:

SYC 5391 of 2014

Judgment of:

Judge Scarlett

Hearing date:

16 December 2014

Date of Last Submission:

16 December 2014

Delivered at:

Sydney

Delivered on:

17 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr Blackah

Solicitors for the Applicant:

Caroline Chung & Associates

Solicitor for the Respondent:

Mr Jurd

Solicitors for the Respondent:

Peter Jurd Lawyer

ORDERS

UNTIL FURTHER ORDER

The Applicant husband and the Respondent wife are to have equal shared parental responsibility for the child [X] born [omitted] 1999.
The child [X] is to live with the Respondent wife.
The child [X] is to spend time with the Applicant according to her wishes.
In accordance with the provisions of section 11F of the Family Law Act 1975 the Applicant and the Respondent and the child [X] are to attend a Child Inclusive Child Dispute Conference with a Family Consultant at a time and on a day specified by the Director of Child Dispute Services and in accordance with section 11C of the said Act the Conference is to be reportable.
The Respondent wife is restrained by injunction from interfering with the day to day operation of the company [A] PTY LTD and must further do all things necessary to facilitate the Applicant conducting the day to day operation of the said company.
The Applicant is to provide to the Respondent:
(a)Copies of the bank statements of the company [A] PTY LTD on a monthly basis on or before the last business day of the month; and
(b)Copies of all BAS statements as lodged within fourteen (14) days of lodgement.
BY CONSENT The Respondent is to have the sole use and occupation of the former matrimonial home situate and known as 1 Property W in the State of New South Wales and the Applicant is restrained by injunction from entering the said former matrimonial home without the written consent of…

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 ACKLAND & ACKLAND

Details

AGLC: ACKLAND & ACKLAND [2015] FCCA 2035
Case: [2015] FCCA 2035
Decision Date: 17 August 2015

CaseChat Overview and Summary

In the matter of ACKLAND & ACKLAND, Judge Scarlett considered parenting, property, and spousal maintenance issues between the applicant husband and respondent wife. The primary dispute concerned parenting orders for their fifteen-year-old daughter, including whether a child-inclusive dispute resolution conference was appropriate given the daughter's strained relationship with her father. Property matters involved applications for exclusive occupation of the former matrimonial home and another property, while spousal maintenance was also addressed.

The court was required to determine the appropriate parenting arrangements for the child, specifically whether to order equal shared parental responsibility and how the child's time would be spent with each parent, considering the child's wishes. Additionally, the court needed to decide on injunctions regarding the exclusive occupation of two properties and the operation of a company. The issue of spousal maintenance for a limited period was also before the court.

Judge Scarlett made orders by consent in relation to property, granting the respondent wife exclusive occupation of the former matrimonial home and the applicant husband exclusive occupation of another property, with each party responsible for outgoings on their respective residences. Both parties were restrained from encumbering or borrowing against these properties. The court also ordered the applicant husband to pay the respondent wife spousal maintenance of $250 per week for six months. Regarding parenting, the court ordered equal shared parental responsibility for the child, with the child to live with the respondent wife and spend time with the applicant husband according to her wishes. A child-inclusive dispute resolution conference was ordered, with the court noting the provisions of sections 11F and 11C of the *Family Law Act 1975*. Further orders addressed the operation of a company and the appointment of an accountant to advise on taxation implications of director's loans.

Orders

Orders of the court

UNTIL FURTHER ORDER

The Applicant husband and the Respondent wife are to have equal shared parental responsibility for the child [X] born [omitted] 1999.

The child [X] is to live with the Respondent wife.

The child [X] is to spend time with the Applicant according to her wishes.

In accordance with the provisions of section 11F of the Family Law Act 1975 the Applicant and the Respondent and the child [X] are to attend a Child Inclusive Child Dispute Conference with a Family Consultant at a time and on a day specified by the Director of Child Dispute Services and in accordance with section 11C of the said Act the Conference is to be reportable.

The Respondent wife is restrained by injunction from interfering with the day to day operation of the company [A] PTY LTD and must further do all things necessary to facilitate the Applicant conducting the day to day operation of the said company.

The Applicant is to provide to the Respondent:

(a) Copies of the bank statements of the company [A] PTY LTD on a monthly basis on or before the last business day of the month; and

(b) Copies of all BAS statements as lodged within fourteen (14) days of lodgement.

BY CONSENT The Respondent is to have the sole use and occupation of the former matrimonial home situate and known as 1 Property W in the State of New South Wales and the Applicant is restrained by injunction from entering the said former matrimonial home without the written consent of the Respondent first had and obtained.

The Respondent is to pay all council rates, water rates and other outgoings on the former matrimonial home whilst she continues to reside there.

BY CONSENT The Applicant husband is to have the sole use and occupation of the property at Property A in the State of New South Wales and the Respondent is restrained by injunction from entering the said property without the written consent of the Applicant first had and obtained.

10.

The Applicant is to pay all council rates, water rates and other outgoings on the said property at Property A whilst he continues to reside there.

11.

BY CONSENT the Applicant and the Respondent are restrained from encumbering or borrowing against the security of the said properties at 1 Property W and Property A.

12.

BY CONSENT the Applicant is to pay to the Respondent by way of spousal maintenance the sum of $250.00 per week for a period of six (6) months from the date of these Orders the first payment to be made within seven (7) days and weekly thereafter.

13.

BY CONSENT within fourteen (14) days from the date of these Orders the Applicant and the Respondent must do all such acts and things as may be necessary to appoint an accountant as agreed between them but failing agreement an accountant is to be appointed by the President of the Institute of Chartered Accountants of Australia or his or her nominee to advise the parties in relation to the taxation implications of the Directors’ loans presently existing in the accounts of the said company [A] PTY LTD and to prepare the necessary tax returns to enable any liability to crystallize.

14.

The Application is adjourned to Monday 14 September 2015 for further mention at 10:00 am.

15.

The Application is adjourned to 10am on Monday 30 November 2015 for callover.

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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