Blan and Faulconer Blan (No 2) - [2014] FamCA 878

FAMILY COURT OF AUSTRALIA

BLAN & FAULCONER BLAN (NO. 2)

[2014] FamCA 878

FAMILY LAW – CHILDREN – BEST INTERESTS OF THE CHILD – allocation of parental responsibility – with whom children shall live - children have lived with mother since separation – where the father was charged with possessing child abuse material – where the charges were dismissed – where allegations of sexual abuse against another member of the family prior to the marriage – where it is found that the father did sexually abuse another member of the mother's family prior to their marriage – evidence that father may lack capacity to provide for the children's psychological needs – presumption of equal shared parental responsibility not applied – sole parental responsibility allocated to the mother – father to spend supervised time with the children.

FAMILY LAW – PROPERTY – where it is just and equitable for the court to make orders altering the parties' property interests – where both parties earn a reasonable level of income – where there is an adjustment made in favour of the wife on account of s 75(2) factors.

Family Law Act 1975 (Cth) s 69ZT(3), s.75(2)
Evidence Act 1995 (Cth)

Maluka & Maluka (2012) 47 Fam LR 272
MRR v GR (2010) 263 ALR 368
M v M (1988) 166 CLR 69
W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
N & S & the Separate Representative (1996) FLC 92-665
Stanford v Stanford [2012] HCA 52

APPLICANT:

Mr Blan

RESPONDENT:

Ms Faulconer Blan

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central

FILE NUMBER:

SYC

2791

2013

DATE DELIVERED:

17 October 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

29, 30 May 2014,
2, 3,4,5,6,11,12,13 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney SC

SOLICITOR FOR THE APPLICANT:

Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Druitt

SOLICITOR FOR THE RESPONDENT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Power

Orders

Parenting Orders

That all existing orders herein in relation to the children:
E BLAN born on … 1998
F BLAN born on … 2001
K BLAN born on … 2003
are discharged.
That the mother have sole parental responsibility for E, F and K, on condition that she:
2.1advises the father in a timely manner of any issue in relation to the long-term care, welfare and development of the children and the decision which she proposes to make and
2.2considers and takes into account any views expressed by the father concerning such issues and
2.3 advises the father in a timely manner of her decision.
That the children live with the mother.
That the children F and K spend time with the father as follows:
4.1until the commencement of the 2017 school year, for a period of five (5) hours once per calendar month in the presence of the paternal aunt Ms O or such other person as the parties…

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.

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Details

Case: [2014] FamCA 878
Decision Date: 17 October 2014

CaseChat Overview and Summary

In the matter of *Blan and Faulconer Blan (No 2)*, Stevenson J of the Family Court of Australia considered parenting and property disputes between the parties. The parenting dispute concerned the allocation of parental responsibility and the residence of the children, E, F, and K. The property dispute involved the division of assets and liabilities between the parties.

The court was required to determine the best interests of the children in allocating parental responsibility and deciding with whom they should live, particularly in light of serious allegations against the father. The presumption of equal shared parental responsibility was not to be applied. In relation to property, the court needed to ascertain whether it was just and equitable to make orders altering the parties' interests, considering their respective incomes and other relevant factors under section 75(2) of the *Family Law Act 1975* (Cth).

Stevenson J found that the father had sexually abused a member of the mother's family prior to the marriage, despite earlier charges being dismissed. The court also noted evidence suggesting the father may lack the capacity to meet the children's psychological needs. Consequently, the presumption of equal shared parental responsibility was displaced, and sole parental responsibility was allocated to the mother. The children were ordered to live with the mother, with the father to have supervised time with F and K, subject to specific conditions and commencement dates. The court also made property orders requiring the wife to pay a sum of money to the husband and to transfer a motor vehicle, while the husband was to transfer his interest in a property to the wife, with alternative provisions for the sale of the property if the payment was not made.

Orders

Orders of the court

Parenting Orders

That all existing orders herein in relation to the children:

E BLAN born on … 1998

F BLAN born on … 2001

K BLAN born on … 2003

are discharged.

That the mother have sole parental responsibility for E, F and K, on condition that she:

2.1 advises the father in a timely manner of any issue in relation to the long-term care, welfare and development of the children and the decision which she proposes to make and

2.2 considers and takes into account any views expressed by the father concerning such issues and

2.3 advises the father in a timely manner of her decision.

That the children live with the mother.

That the children F and K spend time with the father as follows:

4.1 until the commencement of the 2017 school year, for a period of five (5) hours once per calendar month in the presence of the paternal aunt Ms O or such other person as the parties may agree in writing from time to time, with the father to provide to the mother not less than fourteen (14) days written notice of the proposed time and date of such occasions and

4.2 thereafter, from 10.00 am until 5:00pm each alternate Sunday

4.3 at such other times as the parties may agree in writing from time to time.

That the mother ensure that E, F and K are able to communicate with the father by Skype, email and telephone at times of the choosing of the children.

That both parties are entitled to attend events at the children’s schools to which parents are invited from time to time but excluding sports fixtures.

That both parties do all things and execute all documents necessary to ensure that the father receives copies of school reports, photograph order forms, notices of parent/teacher meetings, school assemblies, sports and swimming carnivals and other significant events which are normally attended by parents.

That the mother inform the father as soon as reasonably practicable of any illness or injury suffered by the children which requires admission to a hospital.

9.1 That both parties do all things and execute all documents required to cause K to commence attendance at X School for Year 7 in 2016.

9.2 That each of the parties pay one half of K’s school fees and incidental educational expenses.

10.

That order 4 commence operation only when:

10.1 the mother, the Independent Children’s Lawyer and the children’s psychologist, Ms N have conferred upon and agreed as to information to be provided to the children, or any of them, as to the court’s orders and reasons for judgment.

11.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Property Orders

That, within 28 days of the date of these orders, the wife pay to the husband a sum of $28,524.

That, simultaneously with such payment by the wife to the husband

2.1 the wife shall do all things and execute all documents necessary to cause the transfer to the husband of the whole of her right title to and interest in the Mazda … motor vehicle registered number … and

2.2 the husband shall do all things and execute all documents necessary to cause the transfer to the wife of the whole of his right title to and interest in the property situate at and known as Z Street, Suburb U in the State of New South Wales.

That, in the event that the wife fails to make payment to the husband in accordance with order 1, both parties shall do all things and execute all documents necessary to effect the sale, for the best price reasonably obtainable, of the property situate at and known as Z Street, Suburb U in the State of New South Wales and to distribute the proceeds of such sale as follows:

3.1 in payment of agent’s commission and expenses

3.2 in payment of legal costs and expenses incidental to the sale

3.3 in payment of all monies necessary to discharge the mortgage, line of credit and everyday account owed to the National Australia Bank

3.4 in payment of an amount equal to 91% of the balance then remaining to the wife

3.5 in payment of the balance to the husband.

That the wife indemnify the husband and keep him indemnified in respect of all liabilities arising pursuant to the mortgage, line of credit and everyday account owed to the National Australia Bank.

That all material produced on subpoena be returned.

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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