BICKFORD & BICKFORD - [2020] FCCA 2818

FEDERAL CIRCUIT COURT OF AUSTRALIA

BICKFORD & BICKFORD

[2020] FCCA 2818

Catchwords:
FAMILY LAW – Parenting and property proceedings – allegations by the Mother of family violence during the relationship and post-separation – allegations by the Father that the Mother is attempting to minimise his role in the children’s lives – Mother sought orders to change the children’s surname to her current partner’s surname – ordered that the children spend substantial and significant time with the Father – issues of value of property pool – Father received inheritance – division of assets between the parties following separation – orders made for property division.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 61C, 61DA, 65DAA, 75, 79, Part VIIIA

Evidence Act 1995 (Cth), s.140
Family Law Rules 2004 (Cth), r.17.3

Cases cited:

Bevan v Bevan (2013) 279 FLR 1; [2013] FamCAFC 116

Dickons & Dickons [2012] FamCAFC 154

Eufrosin & Eufrosin [2014] FamCAFC 191
Lovine & Connor [2012] FamCAFC 168
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66
R v R (2000) 155 FLR 29
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Applicant:

MR BICKFORD

Respondent:

MS BICKFORD

File Number:

MLC 5007 of 2019

Judgment of:

Judge Blake

Hearing dates:

3 and 4 June 2020

Date of Last Submission:

11 August 2020

Delivered at:

Melbourne

Delivered on:

15 October 2020

REPRESENTATION

Counsel for the Applicant:

Mr Combes

Solicitors for the Applicant:

Alpass and Associates

Solicitor Advocate for the Respondent:

Mr Testart

Solicitors for the Respondent:

Testart Family Lawyers

Counsel for the Independent Children’s Lawyer

Mr Gardiner

Solicitors for the Independent Children’s Lawyer

Westminster Lawyers Pty Ltd

ORDERS

All previous orders be discharged.
The parties have equal shared parental responsibility for the children X born in 2012 and Y born in 2014 (‘children’).
The children live with the Mother.
The Father spend time and communicate with the children as follows:
(a)Commencing upon the making of these Orders, for a period of one month, each Tuesday from after school, or 3.30pm if it’s a non-school day, until 7:30pm and each alternate Sunday from 10:00am until 5:00pm;
(b)Commencing no earlier than one month after the making of these Orders, each Tuesday from after school, or 3.30pm if it’s a non-school day, until 7:30pm and each alternate Saturday from 10:00am until Sunday at 5:00pm;
(c)Commencing no earlier than three months after the commencement of time pursuant to order 4(b) herein, during the school term, each Tuesday from after school, or 3.30pm if it’s a non-school day, until 7:30pm and each alternate Friday from after school, or 3.30pm if it’s a non-school day, until Sunday at 5:00pm;
(d)Commencing three months after the commencement of time pursuant to order 4(c) herein, during the school term, as follows:
(i)in week one, on Tuesday from after school, or 3:30pm if it’s a non-school day, to the commencement of school on Wednesday, or 9am if it’s a non-school day; and
(ii)in week two,…

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 BICKFORD & BICKFORD

Details

AGLC: BICKFORD & BICKFORD [2020] FCCA 2818
Case: [2020] FCCA 2818
Decision Date: 15 October 2020

CaseChat Overview and Summary

In the matter of Bickford & Bickford, heard by Judge Blake, the dispute concerned parenting arrangements for two children, X and Y, and related financial matters. The Applicant father sought orders for equal shared parental responsibility, an expansion of his time with the children, and for the children to continue living with the Respondent mother. Conversely, the Respondent mother sought sole parental responsibility, with no time spent with the Applicant except by written agreement, and a change of the children's surname to her current partner's surname. The mother's application for sole parental responsibility was based on allegations of family violence, witnessed by the children, and the father's alleged recklessness in their care and denigration of the mother in their presence.

The court was required to determine the most appropriate parenting orders for the children, considering the principles of equal shared parental responsibility and the children's best interests. This involved assessing the allegations of family violence and recklessness made by the mother against the father, and the father's assertion of a meaningful relationship with the children. Additionally, the court had to consider the application for a change of surname for the children and the division of property, including the family home. The standard of proof for the allegations of family violence and recklessness was the balance of probabilities, with the court acknowledging that clear evidence is required for serious allegations.

The court ultimately made orders for equal shared parental responsibility, with the children to live with the mother. The father was granted significant time with the children, with a phased introduction of progressively increasing periods of time, including overnight stays and alternate weekends. The court also ordered that the children retain the surname "Bickford". Injunctions were granted restraining both parties from criticising each other in the presence of the children. The parties were directed to engage in counselling and a specific parenting program. Financially, the respondent was ordered to pay the applicant a sum of $28,246.28, with provisions for the occupation and eventual sale of the family home to satisfy this payment and other encumbrances. The court also made orders for the division of other property and for each party to forego claims to the other's superannuation.

Orders

Orders of the court

All previous orders be discharged.

The parties have equal shared parental responsibility for the children X born in 2012 and Y born in 2014 (‘children’).

The children live with the Mother.

The Father spend time and communicate with the children as follows:

(a) Commencing upon the making of these Orders, for a period of one month, each Tuesday from after school, or 3.30pm if it’s a non-school day, until 7:30pm and each alternate Sunday from 10:00am until 5:00pm;

(b) Commencing no earlier than one month after the making of these Orders, each Tuesday from after school, or 3.30pm if it’s a non-school day, until 7:30pm and each alternate Saturday from 10:00am until Sunday at 5:00pm;

(c) Commencing no earlier than three months after the commencement of time pursuant to order 4(b) herein, during the school term, each Tuesday from after school, or 3.30pm if it’s a non-school day, until 7:30pm and each alternate Friday from after school, or 3.30pm if it’s a non-school day, until Sunday at 5:00pm;

(d) Commencing three months after the commencement of time pursuant to order 4(c) herein, during the school term, as follows:

(i) in week one, on Tuesday from after school, or 3:30pm if it’s a non-school day, to the commencement of school on Wednesday, or 9am if it’s a non-school day; and

(ii) in week two, from after school on Friday, or 3.30pm if it’s a non-school day, until the commencement of school on Monday, or 9am if it’s a non-school day;

(e) Commencing in Term 2, 2021, for one half of each school term holiday and, commencing in the 2021/2022 summer holidays, for one half of the summer holiday, at times to be agreed and, in default of agreement, the first half;

(f) From 2:00pm on Christmas Eve 2020 until 2:00pm Christmas Day 2020 and each alternate year thereafter;

(g) From 2:00pm on Christmas Day 2021 until 2:00pm on Boxing Day 2021 and each alternate year thereafter;

(h) From the end of school, or 3:30pm if it’s a non-school day, on the Thursday before Easter 2021 until 5:00pm on Easter Saturday and in each alternate year thereafter;

(i) From 5:00pm on Easter Saturday 2022 until 5:00pm on Easter Monday and in each alternate year thereafter;

(j) On the Father’s Day weekend from 5:00pm on the Saturday preceding Father’s Day until the commencement of school on Monday, or 9am if it’s a non-school day;

(k) On each of the children’s birthdays if they are not in his care:

(i) if it’s a school day, from the conclusion of school until 6:00pm; and

(ii) if it’s a non-school day, from 10:00am until 2:00pm;

(l) On the Father's birthday:

(i) if it’s a school day, from the conclusion of school that day until the commencement of school the next day, or 9am if it’s non-school day; and

(ii) if it’s a non-school day, from 10:00am until 5:00pm;

(m) By telephone or electronic video communication at all reasonable times, but no less than once per week.

(n) As otherwise agreed between the parents in writing from time to time.

The Father's time with the children is suspended and the children spend time with the Mother on the following events:

(a) on the Mother's Day weekend from 5:00pm on the Saturday preceding Mother’s Day until the commencement of school on Monday, or 9am if it’s a non-school day;

(b) on the children’s birthdays, if the children are in the Father's care pursuant to these orders (save for order 4(k)):

(i) if it’s a school day, from the conclusion of school until 6:00pm; and

(ii) if it’s a non-school day, from 10:00am until 2:00pm;

(i) if it’s a school day, from the conclusion of school that day until the commencement of school the next day or 9am if it’s a non-school day; and

(ii) if it’s a non-school day, from 10:00am until 5:00pm;

(d) From 2:00pm on Christmas Day 2020 until 2:00pm on Boxing Day 2020 and each alternate year thereafter;

(e) From 2:00pm on Christmas Eve 2021 until 2:00pm Christmas Day 2021 and each alternate year thereafter;

(f) From 5:00pm on Easter Saturday 2021 until 5:00pm on Easter Monday and in each alternate year thereafter;

(g) From the end of school, or 3:30pm if it’s a non-school day, on the Thursday before Easter 2022 until 5:00pm on Easter Saturday and in each alternate year thereafter;

For the purposes of the spend time arrangements outlined in paragraph 4 and 5 of these Orders, all changeovers that do not take place at the children’s school, take place at McDonalds Suburb C, with Mr B to be in attendance.

The children continue to use the surname “Bickford”.

Each of the Mother and the Father be and are hereby restrained by injunction, by themselves, their servants or agents from criticising, rebuking, abusing or denigrating the other or any member of the other’s household and/or family in the presence or hearing of the children or either of them.

The parties engage professional counselling support in relation to the psychological and emotional impact of their relationship breakdown and follow all directions of their treating professional.

10.

The parties do all thing necessary to enrol the children and ensure they attend in the “My Parents ‘n’ Me” program through Relationships Australia.

11.

The parents communicate using MyMob, Talking Parents or such other family communication medium.

12.

Within 90 days of the making of these Orders (‘the date’):

(a) The Respondent pay the Applicant, care of Alpass & Associates, the sum of $28,246.28 (‘the payment’); and

(b) Contemporaneously with the payment, the Applicant lodge a withdrawal of any caveats at the Applicant’s sole expense.

13.

Pending the payment being made:

(a) The Respondent have the sole right to occupy D Street, Suburb E (Certificate of Title Volume ..., Folio ...) (‘Property’) and that during such right of occupation, the Respondent pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the Property as they fall due, and keep the Applicant indemnified as to all outgoings of the Property;

(b) The parties hold their respective interests in the Property upon trust pursuant to these Orders; and

(c) Neither party encumber the real property without the consent in writing of the other party, unless the Respondent seeks to do so in order to comply with order 12(a) herein.

14.

In the event the Respondent defaults on the payment referred to in order 12(a) above, the following provisions take effect:

(a) The Respondent forthwith do all things necessary to place the Property on the market for sale on such terms as may be agreed with the Applicant (‘sale’) and failing agreement, on such terms as may be set by the President by the Real Estate Institute of Victoria or his nominee;

(b) The Respondent shall instruct and authorise the selling agent to communicate and consult with the Applicant in relation to the terms and condition of the sale.

(c) The Respondent shall appoint such Solicitor as is agreed with the Applicant to conduct the conveyancing in relation to the sale and, in default of agreement, the President of the Law Institute of Victoria and/or his nominee shall appoint a Solicitor to conduct the conveyancing in relation to the proposed sale.

15.

Pending the completion of the sale:

(a) The Respondent have the sole right to occupy the Property and that during such right of occupation, the Respondent pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due, and keep the Applicant indemnified as to all outgoings of the Property;

(b) the parties hold their respective interests in the Property upon trust pursuant to these Orders;

16.

Upon settlement of the sale of the Property, the proceeds of sale shall be applied as follows:

(a) Firstly, to pay all costs commissions and expenses of the sale;

(b) Secondly, to discharge the Commonwealth Bank mortgage and any other encumbrance affecting the Property, including any caveats;

(c) Thirdly, the sum of $28,246.28, plus interest on the sum of $28,246.28 or such part thereof which remained due to be paid to the Applicant, care of Alpass & Associates, Solicitors, at the rate prescribed by rule 17.3 of the Family Law Rules 2004.

(d) Fourthly, the balance to the Respondent.

17.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any other subsequent orders:

(a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the Property being deemed to be in the possession of the Respondent);

(b) Monies standing to the credit of the parties in any bank account in their sole name are to remain the property of that party and any monies in any joint bank account are to be divided equally between the parties;

(d) Insurance policies remain the sole property of the owner named therein;

(e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

18.

Subject to any appeal, the Independent Children’s Lawyer be discharged.

19.

All extant Applications be dismissed and the matter be removed from the pending cases list.

20.

Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATION:

A. Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

B. Pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as practicable finally determine the financial relationship between them and avoid further proceedings between them.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 140 of the Evidence Act 1995 (‘Evidence Act’) deals with the standard of proof in civil matters. Subsection (1) provides, among other things, that the Court must find the case of a party proved, if it is satisfied that the case has been proved on the balance of probabilities. Further, subsection (2) sets out the matters that the Court may take into account in deciding whether it is so satisfied. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the High Court discussed how clear evidence is required to prove a serious allegation against a party. The High Court stated at pages 449 – 450: ‘The ordinary standard of proof required of a party who bares the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.’ (citations omitted) The Applicant sought an order for equal shared parental responsibility. The principal contention of the Applicant was that the children enjoy a meaningful relationship with him and that he ought to be permitted to continue to build and develop that relationship. He sought orders that expanded the time he presently spends with the children. In summary, his position was that the children continue to live with the Respondent and spend time with him every second weekend from Friday evening until Monday morning, and also time each alternate week from Tuesday after school until Friday morning. The Respondent sought an order for sole parental responsibility. She sought an order that the children live with her, and spend no time with the Applicant, except by written agreement. She also sought an order that the surname of each child be changed to ‘B’. The Respondent’s domestic partner is Mr B. The Respondent has taken his name. She is not yet married to him. The Respondent confirmed under cross-examination that she was pregnant with his child. The Respondent sought the orders above on the basis that she had been subjected to family violence during the relationship, some of which was witnessed by the children, and that the Applicant had been reckless in respect of his care of the children and had denigrated the Respondent in the presence of the children.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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