FAMILY LAW – CHILDREN – where the mother asserts that the father poses an unacceptable risk of harm to the parties’ child – where the father has not spent any time with the child in over two years – where the father has a significant history of illicit drug dependence and abuse – where the mother claims the father physically assaulted the parties’ child – whether the father poses an unacceptable risk of harm to the child – where the father has not used drugs in four years – where there is insufficient evidence to find that the father physically assaulted the parties’ child – where the father does not pose an unacceptable risk of harm to the child provided he continues to abstain from consuming illicit drugs – whether the father should spend time with the child – where there is the potential for the child to benefit from a meaningful relationship with her father – where orders made for graduated time between the father and the child leading, ultimately, to overnight time – where orders for time contingent upon the father undergoing drug testing at the request of the Independent Children’s Lawyer and the results of those tests being clear of specified substances.
FAMILY LAW – PROPERTY – Where the wife brought an unencumbered property into the relationship – where that property now represents the vast bulk of the pool – where the husband made significant direct financial contributions during the relationship – where the parties acquired several investment properties during the marriage – where those properties had to be sold post-separation and where the parties have incurred shortfalls as a result – where the husband concedes he did not apply rental proceeds received by him to mortgage repayments or otherwise make mortgage repayments post-separation – consideration of Stanford v Stanford (2012) 293 ALR 70 – whether husband’s conduct post-separation should be taken into account by way of a disproportionate increase in the wife’s contributions – where justice and equity requires a recognition of the effect of the husband’s conduct – where assessment of wife’s contributions increased disproportionately – where wife will have primary care of the parties’ young child – where the husband continues to receive a significant disability pension each month – where the wife is presently unemployed and in receipt of government benefits – where contributions assessed at 72.5:27.5 per cent in favour of the wife.
[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.
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AGLC
Baglio & Baglio [2013] FamCA 105
Case
[2013] FamCA 105
Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, the case of *Baglio & Baglio* concerned a dispute between the mother and father regarding their child. The mother alleged that the father posed an unacceptable risk of harm to the child, citing his history of illicit drug dependence and abuse, and a claim of physical assault against the child. The father had not spent time with the child for over two years.
The court was required to determine whether the father posed an unacceptable risk of harm to the child, and consequently, whether the father should spend time with the child. The court also had to consider the division of the parties' property pool, which was largely comprised of a property the wife brought into the relationship, and several investment properties acquired during the marriage that had been sold post-separation, resulting in shortfalls.
Regarding the children's matters, the court found insufficient evidence to support the mother's claim of physical assault. While acknowledging the father's past drug dependence, the court noted he had abstained from drugs for four years. The court concluded that the father did not pose an unacceptable risk of harm, provided he continued to abstain from illicit drug use. Recognising the potential benefit to the child of a relationship with her father, the court made orders for graduated time, commencing with supervised contact and progressing to overnight stays, contingent upon the father undergoing regular drug testing and providing clear results. In relation to property, the court considered the husband's conduct post-separation, particularly his failure to apply rental proceeds to mortgage repayments, and applied the principles in *Stanford v Stanford* to adjust the contributions assessment. The wife's contributions were increased disproportionately to recognise the effect of the husband's conduct, and given her primary care of the child and current unemployment, the court assessed contributions at 72.5% in favour of the wife.