Bentleigh and Bentleigh - [2017] FamCA 294

FAMILY COURT OF AUSTRALIA

BENTLEIGH & BENTLEIGH [2017] FamCA 294

FAMILY LAW – CHILDREN – Competing applications for the father to spend time with the children, aged eight and six – Where there are allegations of sexual abuse of the children – Where two expert reports were in evidence – Where the Court cannot be satisfied that the children were sexually abused by their father – Where any risk of sexual abuse can be ameliorated and does not outweigh the benefit of the children having a meaningful relationship with their father – Where the Court finds family violence was perpetrated against the mother but not the children – Consideration of s 60CC factors – Consideration of the parenting capacity of each parent where the father has never had care of the children on his own – Where the mother has a cognitive impairment – Orders made for the children to live with the mother and the children to spend unsupervised time with the father – Where the parties agree to have equal shared parental responsibility.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for the mother to be recalled for cross-examination – Where the mother had been cross-examined for two days – Where there was limited time allocated for the hearing of the matter – Where it was not in the interests of justice to allow the mother to be recalled – Application refused.

FAMILY LAW – PROPERTY – Where the husband made greater contributions to the marriage by way of financial contributions – Where the mother was the primary homemaker and carer of the children – Where the mother suffers from a cognitive impairment and has a mental illness – Where the mother receives the disability pension and has no prospects of gainful employment – Section 75(2) adjustment in the wife’s favour of 15 per cent – Where the wife is to receive 55 per cent of the property pool – Where the parties consented to the wife receiving 50 per cent of the husband’s superannuation entitlements.

Family Law Rules 2004 (Cth)
Family Law Act 1975 (Cth) ss 4AB, 10G, 60CC, 60CC(2)(b), 60CC(2A), 60CC(3), 75(2).

APPLICANT: Mr Bentleigh

RESPONDENT: Ms Bentleigh

INDEPENDENT CHILDREN’S LAWYER Independent Children’s Lawyer

FILE NUMBER: PAC 4005 of 2014

DATE DELIVERED: 11 May 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta and Sydney

JUDGMENT OF: Rees J

HEARING DATE: 27, 30, 31 January and 27, 28 April 2017
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Greenaway

SOLICITOR FOR THE APPLICANT: Lewarne & Goldsmith

COUNSEL FOR THE RESPONDENT: Mr Kenny

SOLICITOR FOR THE RESPONDENT: Rowlandson & Co Solicitors

COUNSEL FOR THE INDPENDENT CHILDREN’S LAWYER: Mr Guterres

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stanfords Solicitors and Conveyancers
Orders
IT IS ORDERED

That all previous parenting orders in relation to the children B born … 2008 and C born … 2011 (“the children”) be discharged.
PARENTAL RESPONSIBILITY ORDERS
That the parents shall have equal shared parental responsibility for the children.
LIVE WITH ORDER
That the children shall live with 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 Bentleigh and Bentleigh

Details

AGLC: Bentleigh and Bentleigh [2017] FamCA 294
Case: [2017] FamCA 294
Decision Date: 11 May 2017

CaseChat Overview and Summary

Rees J made orders concerning the parenting of two children, B and C, and the division of property between their parents. The dispute involved the arrangements for the children's care, welfare, and development, as well as the distribution of financial assets.

The court was required to determine the appropriate parenting orders, including the allocation of parental responsibility, living arrangements, and time spent with each parent. Additionally, the court had to make orders regarding the division of property, specifically addressing funds held in a trust account and superannuation interests. The court also considered orders relating to communication between the parents, the children's therapy, education, and medical care, as well as provisions for dispute resolution and restrictions on parental conduct.

Rees J ordered that previous parenting orders be discharged and that the parents share equal parental responsibility for the children. The children were ordered to live with the mother, with the mother having responsibility for their day-to-day care when they are with her, and the father having that responsibility when they are with him. The father was granted time with the children on alternate weekends during school terms and half of each school holiday period, with specific arrangements for changeovers and overnight stays. The court also made detailed orders regarding special occasions, communication, therapy, education, and medical information, including a prohibition on the father drinking alcohol while the children are in his care. Furthermore, the court ordered the distribution of funds from a trust account and a portion of the father's superannuation to the mother, with other property to remain with the party in possession.

Orders

Orders of the court

IT IS ORDERED

That all previous parenting orders in relation to the children B born … 2008 and C born … 2011 (“the children”) be discharged.

PARENTAL RESPONSIBILITY ORDERS

That the parents shall have equal shared parental responsibility for the children.

LIVE WITH ORDER

That the children shall live with the mother.

DAY TO DAY CARE, WELFARE AND DEVELOPMENT

That the mother shall have responsibility for decisions as to the children’s day to day care, welfare and development during periods when they are living with (or spending time with) her and the father shall have that responsibility at times the children are in his care.

SPEND TIME WITH ORDER

The children shall spend time with the father as follows:

a. During school terms, each alternate weekend from the conclusion of school Friday until 4.00 pm Sunday; and

b. During one half of each New South Wales school holiday period, such half to be agreed between the parties, but failing agreement the first half of each school holiday period.

For the purposes of changeover of the children:

a. during school terms the father (or his nominee) shall collect the children from the KFC outlet in D Street, E Town at 3.30pm and deliver the children to the mother (or her nominee) at Suburb F Railway Station at the conclusion of that time unless otherwise agreed; and

b. During school holiday periods, the father shall collect and return the children to and from the mother at Suburb F Railway Station.

That any overnight time the children spend with the father shall occur at the home of either the paternal grandparents or the paternal aunt.

OCCASIONS AND EVENTS OF SPECIAL SIGNIFICANCE

That the children shall spend time with the each of the parties on the following occasions of special significance:

a. That the father will spend three hours with the children on his birthday at times from the conclusion of school, or 3.00 pm, until 7.00 pm;

b. If Mothers’ Day falls on a Sunday that the children are spending time with the father, the children will be returned to the mother at 5.00 pm on the Saturday prior to Mothers’ Day. If Fathers’ Day falls on a Sunday that the children are otherwise with the mother, such time shall be suspended and the children will spend time with the father from 5.00 pm on the Saturday prior to Fathers’ Day until 4.00 pm on Fathers’ Day;

c. Notwithstanding any other order, each alternate year commencing 24th December 2017, the children will spend time with the father from 9.00 am Christmas Eve until 2.00 pm on 26th December;

d. Notwithstanding any other order, each alternate year commencing 24th December 2018, the children will spend time with the mother from 9.00 am Christmas Eve until 2.00 pm on 26th December;

e. The parents will both be entitled to attend all events involving the children including:

i. Sporting fixtures;

ii. Extra curricula activities that allow for parental attendance; and

iii. School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions;

and the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from that event.

That in the event the parties cannot come to a joint decision about a major long term issue, they will do all things necessary to participate in family dispute resolution with a person authorised under section 10G of the Family Law Act 1975 (Cth).

THERAPY

10. That each party shall do all things necessary to facilitate the children’s attendance upon a therapist, being a child psychologist or psychiatrist nominated by the Independent Children’s Lawyer after consultation with the single expert, Dr G, and Dr H and IT IS NOTED that neither party is in a position to pay privately for a therapist for the children and the therapist will need to be engaged with the assistance of the public sector.

11. For the purposes of Order 10, each party shall:

a. Ensure the children attend all scheduled appointments for as long as the therapist deems necessary;

b. Attend appointments themselves as requested by the therapist; and

c. Comply with recommendations made by the therapist including attendance upon any other person that therapist may recommend.

12. That the Independent Children’s Lawyer shall provide to the therapist a copy of the report of Dr G, Dr H and a copy of the Reasons for Judgment.

SCHOOL / EDUCATION

13. That within 14 days of these Orders and within 14 days of the children’s subsequent enrolment at any school, each parent do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to each parent copies of all of the children’s school reports and merit cards, and any written material pertaining to the children’s academic and extra-curricular activities.

HOSPITALISATION

14. That the mother ensure the father is provided with all contact details of any medical practitioner or other health professional that the children attend upon from time to time.

15. That the father is authorised to contact any such medical practitioner or other health professional to obtain information about the children’s attendance, treatment or general health.

16. That in the event of either or both the children being hospitalised or receiving medical attention, the parent who has care of the children shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

INCAPACITY TO CARE FOR CHILDREN / ILLNESS OF A PARENT

17. That in the event either party is incapable of caring for the children, whether due to hospitalisation, work commitments or other social commitment, that party shall give the option to the other parent of caring for the children first before alternative arrangements are made for the care of the children.

COMMUNICATION ORDERS

18. That the children have the following communication with each parent:

a. Reasonable telephone communication with the parent who does not have the care of the children as the children may request from time to time and the parties agree that the parent who has care of the children will facilitate the making of such telephone call; and

b. Each parent will ensure privacy during telephone conversations with the non-resident parent.

19. That each parent shall ensure the other parent is kept informed of:

a. Any medical problems or illnesses suffered by the children while in the non-resident parent’s care;

b. Any medication that has been prescribed for the children;

c. Any extracurricular, social, school or religious functions which the children are to attend;

d. Their residential address, contact telephone number, and particulars of the others who may reside with the children from time to time; and

e. Any other matter relevant to the children’s welfare.

20.

That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.

21.

That each party is restrained from discussing with the children any allegation raised in these proceedings or from showing the children any court documents.

22.

That each parent is restrained from presenting the children to a medical or health practitioner for the purposes of the children making a disclosure about the father.

23.

That in the event the children make any disclosure in the nature of sexual impropriety, each parent shall immediately contact the children’s therapist to seek advice of the therapist and shall follow the advice given. If no therapist has been appointed, then the parents shall contact the Department of Family and Community Services for advice before taking any other step.

24.

That the father is restrained from drinking alcohol whilst the children are in his care.

PROPERTY

25.

That each party do all things required to effect the distribution of the funds in the trust account held by Lewarne & Goldsmith Lawyers as follows:

(a) The sum of $161,523 to the wife;

(b) The balance to the husband.

26.

That a base amount of $88,972 is allocated, as required by s 90MT(4) of the Family Law Act 1975 (Cth), to the mother out of the father’s interest in the AMP Super Fund member no. 917791025.

27.

That Order 25 have effect from the operative time and the operative time is four (4) business days after service of this order on the trustee.

28.

That other than as provided in these orders, each party shall be solely entitled to any item of property in his or her possession at the date of these Orders.

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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RESPONDENT:	Ms Bentleigh
INDEPENDENT CHILDREN’S LAWYER	Independent Children’s Lawyer