Creighton & Creighton (No 3)

Case [2022] FedCFamC1F 978

Federal Circuit and Family Court of Australia

(DIVISION 1)

Creighton & Creighton (No 3) [2022] FedCFamC1F 978

File number(s): MLC 6907 of 2019
Judgment of: JOHNS J
Date of judgment: 15 December 2022 
Catchwords:

FAMILY LAW – CHILDREN – parental responsibility – with whom children spend time – best interests of the children – family violence – children’s views – where the children are 14, 15 and 17 years old – where two of the children have indicated an unwillingness to spend time with the husband – where the husband is alleged to have committed family violence against the wife – where the husband is alleged to have engaged in coercive controlling behaviour – where the husband’s actions in favouring the middle child has caused a split in the sibling relationship – where the husband has a history of failure to comply with boundaries – where it is necessary to impose restrictions upon the husband’s time with the children

FAMILY LAW – PROPERTY – final property settlement – application for adjustment – justice and equity – where the husband has failed to file any material or prosecute his case – where the parties have accrued assets throughout the marriage in their sole names – where the wife contends the parties maintained separate finances – where the wife submits that it would not be just and equitable to adjust the parties’ property – where the wife seeks that the husband’s application be dismissed pursuant to Rules 1.33 and 10.27 – where the husband has been afforded numerous indulgences and continually failed to comply with court orders – where the husband’s application for adjustment of property interests should be dismissed  
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Part VII, ss 60B(1) & (2), 60CA, 60CC(2), (2A) & (3), 61DA, 64B, 65C, 65DAA, 102NA

Federal Circuit and Family Court of Australia Rules 2021 (Cth) Rules 1.33, 10.27, 10.7  
Cases cited:

 Donnell & Dovey (2010) FLC 93-428

McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518

Mulvany & Lane (2009) FLC 93-404

Stanford v Stanford (2012) 247 CLR 108

Division: Division 1 First Instance
Number of paragraphs: 239
Date of last submission/s: 1 September 2022
Date of hearing: 29 August – 1 September 2022
Place: Melbourne
The Applicant: In Person (Self-Represented Litigant)
Counsel for the Respondent: Ms Vohra SC
Solicitor for the Respondent: Taussig Cherrie Fildes
Counsel for the Independent Children's Lawyer: Mr DeVries
Solicitor for the Independent Children's Lawyer: VM Family Lawyers

ORDERS

MLC 6907 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR CREIGHTON

Applicant
AND:

MS CREIGHTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JOHNS J

DATE OF ORDER:

15 December 2022

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

2.The Wife have sole parental responsibility for making decisions regarding the long term care, welfare and development of the children X born 2005, Y born 2006 and

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Details
AGLC
Creighton & Creighton (No 3) [2022] FedCFamC1F 978
Case
[2022] FedCFamC1F 978
Decision Date

CaseChat Overview and Summary

The case of Creighton & Creighton (No 3) involved a dispute between the husband and wife regarding the allocation of parental responsibility and various other issues concerning their children. The husband sought equal shared parental responsibility, daytime visitation, and specific communication terms, while the wife and the Independent Children's Lawyer (ICL) sought sole parental responsibility for the wife. The issues included the notice period for significant illness or injury of the children, the husband's right to initiate communication, the possibility of an injunction against the husband attending the children’s school, and the husband’s application for property orders.

The court was required to decide whether the children's best interests were served by granting sole parental responsibility to the wife or if equal shared parental responsibility was more appropriate. It had to determine the visitation schedule for the husband, the notice period for significant medical events, the terms of communication between the husband and the children, the possibility of an injunction, and the validity of the husband’s application for property orders given his non-compliance with court orders and lack of evidence supporting his application. The court also had to consider the children’s desire to maintain or limit their relationship with the husband and the husband's conduct during the proceedings.

The court found that it would not be in the children's best interests to have equal shared parental responsibility due to their adamant refusal to spend time with the husband and his resistance to any limitations on their relationship. The evidence showed that the husband was not compliant with court orders and had disengaged from the proceedings. The court accepted the wife’s evidence that the children did not wish to have a meaningful relationship with the husband and that his conduct did not bode well for his ability to comply with any imposed restrictions. The court granted sole parental responsibility to the wife and did not consider the other issues in s 65DAA of the Act. The husband's application for property orders was dismissed due to his failure to comply with court orders and the lack of evidence supporting his application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues remaining to be determined by the Court at the conclusion of the hearing are as follows:-·The allocation of parental responsibility. Should the wife have sole parental responsibility, as sought by she and the ICL, or the parties have equal shared parental responsibility, as sought by the husband? ·Should the husband’s time occur during daytime periods only or on an overnight basis, as sought by the husband? ·What notice period should be provided to the husband in the event that one of the children suffers a significant illness or injury requiring hospitalisation or the attendance upon a specialist medical practitioner? The husband seeks that he be provided no less than 12 hours’ notice of such instance whilst the wife proposes that the husband be notified of such instance within 72 hours. The ICL supports the wife’s position.·Should the husband be permitted to communicate with the children by FaceTime or telephone, or alternatively should such communication be initiated by the children only?·Should the husband be restrained by injunction from attending the children’s school?·Should the husband’s application for property orders be dismissed pursuant to Rules 1.33(2)(a) and 10.27(1) of the Federal Circuit Court and Family Court of Australia Rules 2021 (Cth) due to his failure to comply with orders of the Court in relation to the filing of his trial affidavit material, orders for discovery and his failure to prosecute his application with due diligence?·Alternatively, should the Court dismiss the husband’s application for property orders in circumstances where there is no evidence to support a finding that it would be just and equitable to make any adjustment to the parties’ respective interests?THE EVIDENCE In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-·The nature of the cause of action or defence; and·The nature of the subject-matter of the proceeding; and·The gravity of the matters alleged. I have read all documents upon which the parties have relied and the exhibits that were tendered during the hearing. In what follows, statements of fact constitute findings of fact. In determining the matter I have had regard to all of the evidence and had the benefit of observing the appearance and the demeanour of the husband (when presenting his case), and the wife and those witnesses who were required for cross-examination. I have carefully considered the matter and in making findings to the requisite standard, I have had regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.The Respondent Wife The wife gave evidence on the first day of hearing. The wife gave brief evidence-in-chief and was questioned as to how she calculated the values of properties identified in her Notice to Admit, dated 23 May 2022 (Exhibit M-5). The wife confirmed that she had researched the value of the properties on realestate.com.au and that she had also taken into account the valuations attributed to those properties in rates and land-tax notices.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For the reasons set out below, I am satisfied that it would not be in the children’s best interests for the husband and wife to have equal shared parental responsibility; I will make orders as sought by the wife and the ICL that the wife have sole parental responsibility for the children. Accordingly, I am not required to consider the matters raised in s 65DAA of the Act.SECTION 60CC CONSIDERATIONSPrimary Considerations: Section 60CC(2)(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents. The question of what constitutes a ”meaningful relationship” was considered by Brown J in Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At [26] of that judgment, Her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child. In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405, the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-[119] … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents… …[122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests. (Emphasis in Original) The evidence of Ms C, which I accept, is that neither X nor Z wish to spend time with the husband. Whilst Y confirmed to Ms C that she does wish to spend time with the husband, she acknowledged the adverse impact her relationship with the husband has had on her relationship with her siblings. She was also clear in her desire that there be boundaries as to how she is to spend time with the husband; she did not wish to be bound to spend time with the husband during specified periods, given her commitments to her employment, her studies and her social commitments. The challenge for the Court is crafting orders which will enable the possibility of a meaningful relationship between the children and the husband in circumstances where two of the children are adamant in their refusal to spend time with him and where he is resistant to any boundaries being placed upon his relationships with them. The evidence of the wife indicates that whenever he is afforded opportunity to spend time with the children, he presses for more; she alleges that this occurred most recently between early and mid-2021 and culminated in her obtaining the second Family Violence Intervention Order. Even in the course of the hearing, the husband was resistant to any direction or limitations being placed upon the manner in which he could present his case. The trial proceeded in circumstances where the husband failed to comply with directions for the filing of material and eventually disengaged with the Court process, absenting himself from the final day of hearing and failing to respond to telephone calls and emails inviting his participation in the hearing. Such conduct does not bode well in terms of his ability to comply with any restrictions that may be imposed to regulate his relationships with the children.(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;