Carpenter & Woodward - [2021] FedCFamC2F 600

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carpenter & Woodward [2021] FedCFamC2F 600

File number(s): MLC 1855 of 2021

Judgment of: JUDGE BENDER

Date of judgment: 24 November 2021

Catchwords:
FAMILY LAW – PARENTING – The Mother’s application for parenting orders – the Father has not filed any material and has not participated in proceedings – the children have spent no time with the Father since January 2021 following an incident relating to the Father’s heavy drug usage.

HELD – The Mother have sole parental responsibility for the children – the children to live with the Mother and spend time with the Father as agreed between the parties in writing.

FAMILY LAW – PROPERTY – The Wife’s application for property orders – the Husband has not filed any material and has not participated in proceedings – the parties do not hold any assets – the property pool consists of the Husband’s interest in his late mother’s estate.

HELD – The executor of the estate of the Husband’s late mother be joined as a party to the proceeding – the Second Respondent cause any interest they currently hold on behalf of the Husband in the estate to be transferred to the Wife.

Legislation: Family Law Act 1975 (Cth)

Cases cited: Calvin & McTier [2017] FamCAFC 125
Bonnici & Bonnici [1991] FamCA 86

Division: Division 2 Family Law

Number of paragraphs: 71

Date of hearing: 24 November 2021

Place: Bendigo

Solicitor for the Applicant: Ms Buchanan of Reign Legal

Counsel for the Respondent: The Respondent did not appear
ORDERS

MLC 1855 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CARPENTER

Applicant

AND:
MR WOODWARD

Respondent

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

24 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The Applicant has sole parental responsibility for the children X born in 2008 (“X”), Y born in 2010 (“Y”) and Z born in 2012 (“Z”) collectively (“the children”).
2.The children live with the Applicant and spend time with the Respondent only by agreement in writing with the Applicant.
3.The Applicant be at liberty to serve a copy of these orders on the children’s school, general practitioner, treating psychologists or mental health counsellors or any other party as determined to be necessary by the Applicant.
4.Ms B, in her capacity as the executor of the estate of Ms C be joined to these proceedings as the Second Respondent (‘the Second Respondent”).
5.Within 28 days of the date of these Orders, the Second Respondent do all acts and things, and sign all documents necessary to cause any interest they hold on behalf of the Respondent in the property located D Street, Town E in the State of Victoria, being more particularly described in Certificate of Title Volume … Folio … to be transferred to the Applicant.
6.Within 28 days of the date of these Orders, the Second Respondent will do all acts and things, and sign all documents necessary to pay to the Applicant any money they…

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 Carpenter & Woodward

Details

AGLC: Carpenter & Woodward [2021] FedCFamC2F 600
Case: [2021] FedCFamC2F 600
Decision Date

CaseChat Overview and Summary

This case involves an application by the Mother for parenting and property orders following the breakdown of the marriage between the Mother and the Father in 2017. The Father did not appear at any hearings or file any material, leading the Court to proceed on an undefended basis. The Court had to decide on the allocation of parental responsibility and the distribution of the Father’s inheritance from his late mother’s estate. The Court determined that the Mother should have sole parental responsibility for the children, as the Father’s drug abuse and criminal activities made it unsafe for the children to have a meaningful relationship with him. The Court also ruled that it was just and equitable to transfer a portion of the Father’s inheritance to the Mother, reflecting her greater contributions to the family as a homemaker and parent. The Court ordered that the children live with the Mother and spend time with the Father only as agreed in writing. Additionally, the Court ordered that the executor of the Father’s late mother’s estate transfer the Father’s interest in a property and any held funds to the Mother.

The final orders included granting the Mother sole parental responsibility for the children, requiring the children to live with her and spend time with the Father only by written agreement. The Court also ordered the executor of the Father’s late mother’s estate to transfer the Father’s interest in a property and any held funds to the Mother, and required the parties to retain their respective property with some exceptions. All other applications were dismissed, and the matter was removed from the pending cases list.

Orders