CATTRALL & CATTRALL - [2024] FedCFamC1F 241

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

CATTRALL & CATTRALL [2024] FEDCFAMC1F 241

File number: BRC 16786 of 2021

Judgment of: CAREW J

Date of judgment: 16 April 2024

Catchwords:
FAMILY LAW – CHILDREN – Where the children spent very little time with the father for two and a half years following separation – Where the parents agreed to a moratorium on the children’s time and communication with the mother on the third day of trial – Where re-introduction therapy with the father was successful – Where the matter returned for a part-heard defended hearing to determine what care arrangements are in the children’s best interest – Where limiting the children’s relationship with their mother is unnecessarily restrictive – Where the presumption of equal shared parental responsibility does not apply – Where equal shared parental responsibility is nonetheless in the children’s best interests – Where the children will live in an equal time arrangement with the parents after a gradual re-introduction to the mother.

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the parties are in dispute about the weight to be given to the husband’s greater financial contributions and wife’s greater homemaking contributions – Whether there should be an adjustment based on the disparity in parties’ incomes – Where contributions favour the husband in the proportion 55/45 – Where there is a five percent adjustment in favour of the wife for earning disparity – Where the property will be subject to equal division including a superannuation splitting order.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 62B, 64B, 65D, 65DAA, 65DAC, 65DA, 75, 79, 90XT, 106A

Family Law (Superannuation) Regulations 2001 (Cth)

Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93–637
Eastley & Eastley (2022) FLC 94–094
Isles and Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93–344
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92–655
Re David (1997) FLC 92–776
Stanford v Stanford (2012) 247 CLR 108

Number of paragraphs: 80

Date of hearing: 20 – 22 November 2023 and 21 March 2024

Place: Brisbane

Counsel for the Applicant: Mr Bunning

Solicitor for the Applicant: Simonidis Steel Lawyers

Counsel for the Respondent: Mr Lake

Solicitor for the Respondent: CG Legal Group

Counsel for the Independent Children’s Lawyer: Mr Todman

Solicitor for the Independent Children’s Lawyer: Queensland Legal Practice
ORDER

BRC 16786 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CATTRALL

Applicant

AND:
MS CATTRALL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAREW J

DATE OF ORDER:

16 APRIL 2024

THE COURT ORDERS BY WAY OF FINAL ORDER THAT:
PARENTING
Parental responsibility
1.Mr Cattrall (“the father”) and Ms Cattrall (“the mother”) have equal shared parental responsibility for all major long-term issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)…

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 CATTRALL & CATTRALL

Details

AGLC: CATTRALL & CATTRALL [2024] FEDCFAMC1F 241
Case: [2024] FedCFamC1F 241
Decision Date: 16 April 2024

CaseChat Overview and Summary

The case of Cattrall & Cattrall involved a dispute between the parents, Cattrall and Cattrall, concerning both the care arrangements for their two children and the division of property following their separation. The parents had been married since 2011 and separated in mid-2021, with the father continuing to reside in their former matrimonial home. The court was tasked with determining the best care arrangements for the children, considering the significant time they had spent apart, and with dividing their property in a manner deemed just and equitable.

The primary legal issues before the court included the assessment of the children's best interests in terms of care arrangements and the division of the matrimonial property. The court had to consider the children's limited interaction with their father post-separation, the successful re-introduction therapy, and the independent children's lawyer's recommendations. Additionally, the court needed to balance the financial contributions of both parents and the homemaking contributions of the mother to arrive at a fair property settlement.

In reaching its decision, the court acknowledged the significant period the children had spent away from their father and the successful re-introduction therapy, which facilitated a more balanced relationship. The court found that the presumption of equal shared parental responsibility did not apply due to the restrictive nature of the mother's relationship with the children. However, it determined that equal shared parental responsibility was in the children's best interests, leading to an equal time arrangement with both parents. The court also considered the disparity in financial contributions and homemaking duties, ultimately deciding on an equal division of property with a superannuation splitting order.

The court ordered that the children would live in an equal time arrangement with their parents following a gradual re-introduction to their mother. In terms of property settlement, the court ruled for an equal division of the former matrimonial home, including a superannuation splitting order.

Orders

Orders of the court

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Background

Background to the litigation

The independent children’s lawyer (“ICL”) recommends that the children live with the father and spend time with the mother, initially supervised for two hours per week for no less than three months, and upon the provision of a report from the mother’s therapist “confirming that the mother has continued to participate in her therapy and that the mother has addressed issues in relation to improving the family relationships”, for gradually increasing unsupervised time until the children are spending nine nights per fortnight with the father and five nights per fortnight with the mother. The ICL recommends the father have sole parental responsibility. BACKGROUND The mother and father married in 2011 having commenced a relationship sometime in 2010. In mid-2011, the parents relocated from New South Wales to Queensland and commenced residing in the property at D Street, Town E (“the former matrimonial home”). The former matrimonial home was initially rented and was subsequently purchased in late 2012. The parents separated on a final basis in mid-2021 but are not divorced. The parents lived separate lives under the same roof for some months during the period 2018 to final separation on 5 July 2021 at which time the father temporarily relocated. In early August 2021, the father returned to the former matrimonial home and continues to reside there. Since that time, the father has had the benefit of living in the former matrimonial home, although he alone has met the mortgage repayments, rates, and all other outgoings in relation to the home. At or about the end of July 2021, the mother relocated from the former matrimonial home. The mother now resides in a rental property in Town E. The father was born in 1972 and is 51 years of age. He is employed as a manager and is in good health. The father’s average weekly wage is $2,716. Until the children commenced to live with the father late last year, he was paying child support to the mother as assessed in the amount of about $452 per week. The mother was born in 1977 and is 47 years of age. She is employed as an assistant manager and is in good health. The mother’s average weekly wage is $1,840. The mother is currently paying child support to the father as assessed in the amount of about $279 per week. The parents’ two children are X born 2012 and Y born 2014 (“the children”). The mother has another adult child from a previous relationship, namely, Mr C aged 20. Mr C currently resides with the mother. Mr C lived with the parents throughout the marriage. He was eight years old in 2011 when he was adopted by the father. The father worked in a ‘fly in, fly out’ job until about 2016 and continued to travel with his employment until 2018. The parents have been involved in various criminal and domestic violence proceedings since their final separation. In mid-2021, the mother pleaded guilty to a charge of common assault against the father and was sentenced to a good behaviour bond, with no conviction recorded. In mid-2021, the mother consented without admissions to a protection order naming the father as the protected person. The protection order will expire in mid-2026. In mid-2021, the mother filed an application for a protection order against the father on behalf of the child, X. The mother withdrew the application the following month.

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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File number:	BRC 16786 of 2021
Judgment of:	CAREW J
Date of judgment:	16 April 2024
Catchwords:	FAMILY LAW – CHILDREN – Where the children spent very little time with the father for two and a half years following separation – Where the parents agreed to a moratorium on the children’s time and communication with the mother on the third day of trial – Where re-introduction therapy with the father was successful – Where the matter returned for a part-heard defended hearing to determine what care arrangements are in the children’s best interest – Where limiting the children’s relationship with their mother is unnecessarily restrictive – Where the presumption of equal shared parental responsibility does not apply – Where equal shared parental responsibility is nonetheless in the children’s best interests – Where the children will live in an equal time arrangement with the parents after a gradual re-introduction to the mother. FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the parties are in dispute about the weight to be given to the husband’s greater financial contributions and wife’s greater homemaking contributions – Whether there should be an adjustment based on the disparity in parties’ incomes – Where contributions favour the husband in the proportion 55/45 – Where there is a five percent adjustment in favour of the wife for earning disparity – Where the property will be subject to equal division including a superannuation splitting order.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 62B, 64B, 65D, 65DAA, 65DAC, 65DA, 75, 79, 90XT, 106A Family Law (Superannuation) Regulations 2001 (Cth)
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93–637 Eastley & Eastley (2022) FLC 94–094 Isles and Nelissen (2022) FLC 94-092 Johnson & Page (2007) FLC 93–344 M v M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92–655 Re David (1997) FLC 92–776 Stanford v Stanford (2012) 247 CLR 108
Number of paragraphs:	80
Date of hearing:	20 – 22 November 2023 and 21 March 2024
Place:	Brisbane
Counsel for the Applicant:	Mr Bunning
Solicitor for the Applicant:	Simonidis Steel Lawyers
Counsel for the Respondent:	Mr Lake
Solicitor for the Respondent:	CG Legal Group
Counsel for the Independent Children’s Lawyer:	Mr Todman
Solicitor for the Independent Children’s Lawyer:	Queensland Legal Practice

BRC 16786 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR CATTRALL Applicant
AND:	MS CATTRALL Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CAREW J
DATE OF ORDER:	16 APRIL 2024