BISSETT & BISSETT - [2013] FamCA 431

FAMILY COURT OF AUSTRALIA

BISSETT & BISSETT

[2013] FamCA 431

FAMILY LAW – CHILDREN –Interim parenting dispute – Not proper to make orders.

FAMILY LAW – PROPERTY – Exclusive occupancy – No basis to make order.

FAMILY LAW – SPOUSAL MAINTENANCE – Order sought – Applicant does not reach the threshold.

Family Law Act 1975 (Cth)

G v J (Ouster order) [1993] 1 FLR 1008
Goode and Goode (2006) FLC 93-286
Mullen and De Bry [2006] FamCA 1380
Scholte and Scholte (unreported, the Full Court Kay, Holden and Monteith JJ, 7 February 2002
Strahan and Strahan (Interim property orders) [2009] FamCAFC 166, 241 FLR 1, (2011) FLC 93-466

APPLICANT:

Ms Bissett

RESPONDENT:

Mr Bissett

FILE NUMBER:

MLC

3359

2013

DATE DELIVERED:

11 June 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

4 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams

SOLICITOR FOR THE APPLICANT:

Adrian Abrahams Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Weil

SOLICITOR FOR THE RESPONDENT:

Marshalls & Dent

Orders

That the husband and wife do all acts and things necessary to enable the husband to draw down against the mortgage encumbering the parties’ real property, the sum of $30,000 for the purposes of such sum being used by the husband as litigation funding and the funds be taken into account at trial in such manner as the trial judge sees fit.
That until further order, the husband be restrained by injunction from accessing or viewing sexually explicit material within the home at which the parties live or whilst he has the care of the child C.
That the interim orders sought in the application of the wife filed 30 April 2013 and the response by the husband thereto filed 4 June 2013 are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bissett & Bissett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3359 of 2013

Ms Bissett

Applicant

And

Mr Bissett

Respondent

REASONS FOR JUDGMENT

Six disputed issues between Mr Bissett (“the husband”) and Ms Bissett (“the wife”) are dealt with in these reasons arising out of a Judicial Duty List hearing on 4 June 2013. They are:
(a)should the wife have sole occupancy of the former matrimonial home;
(b)what time should the parties’ 15 year old son C, (“the child”) spend with each parent and should the husband as part of any proposed parenting order be restrained from accessing or viewing pornography;
(c)what (if any) order should be made for financial assistance by the husband towards the wife;
(d)should the husband be permitted to draw down against the mortgage encumbering the home for the purposes of providing litigation funding (at least for him) in the sum…

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 BISSETT & BISSETT

Details

AGLC: BISSETT & BISSETT [2013] FamCA 431
Case: [2013] FamCA 431
Decision Date

CaseChat Overview and Summary

In *Bissett & Bissett*, the Family Court of Australia considered six disputed issues between the husband and wife concerning interim parenting, property, and spousal maintenance. The wife sought sole occupancy of the former matrimonial home, specific parenting orders for their 15-year-old son, including an injunction against the husband viewing pornography, and financial assistance. The husband sought to draw down $30,000 from the mortgage for litigation funding and opposed most of the wife's applications.

The court was required to determine whether to grant interim parenting orders, including sole occupancy of the home and an injunction regarding the husband's behaviour with pornography, considering the paramountcy of the child's best interests. It also had to assess the wife's claim for spousal maintenance and the husband's application for litigation funding. The court was cautioned against making definitive findings of fact on contentious issues at an interim stage, particularly where evidence was untested.

Regarding parenting, the court noted the parties' agreement for equal shared parental responsibility but found insufficient evidence to justify the wife's requested orders for sole occupancy or an injunction against the husband's behaviour, citing the need for real necessity and a clear factual basis for such orders, as established in cases like *G v J* and *Scholte and Scholte*. The wife's claim for spousal maintenance was dismissed as she did not meet the threshold under section 72 of the *Family Law Act 1975* (Cth), given her income and ability to support herself. The husband's application for litigation funding was also not granted, with the court noting the wife's opposition and the limited property and income involved.

Ultimately, the court made an agreed order for equal shared parental responsibility and an injunction restraining the husband from viewing or accessing pornography in the presence of the child. All other interim orders sought by the wife were dismissed, and the husband's application for litigation funding was not granted.

Orders