D v B [No 2] - [2012] WASCA 265

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: D -v- B [No 2] [2012] WASCA 265

CORAM: BUSS JA
NEWNES JA
MURPHY JA

HEARD: 14 SEPTEMBER 2012

DELIVERED : 14 DECEMBER 2012

PUBLISHED : 14 DECEMBER 2012

FILE NO/S: CACV 13 of 2012

BETWEEN: D
Appellant
AND
B
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :MONCRIEFF J
Citation  :B and D [2012] FCWA 9
File No  :PTW 3688 of 2009

Catchwords:

Family law - Appeal against parenting and property orders - Whether primary judge erred in ordering father's access to children to be supervised - Whether children likely to be exposed to psychological abuse and inappropriate behaviours if no supervision - Relevance of prior conduct of father - Whether property settlement was against weight of evidence

Legislation:

Family Law Act 1997 (WA), s 66, s 66A, s 66C, s 70A

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
Respondent:     Mr R I M Bannerman
Independent Children's Lawyer   :    Ms R L Cohen

Solicitors:

Appellant:     In person
Respondent:     Bannerman Solicitors
Independent Children's Lawyer   :    Legal Aid (WA)

Case(s) referred to in judgment(s):

Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gronow [1979] HCA 63; (1979) 144 CLR 513
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

JUDGMENT OF THE COURT: This is an appeal against a decision of Moncrieff J in the Family Court of Western Australia, in which his Honour made orders for custody and access in relation to the two children of the relationship between the appellant and the respondent, and a financial settlement between them.
Following a ten day trial, the primary judge ordered, in substance, that the respondent, the mother, was to have sole parental responsibility for the children and the appellant, the father, was to have supervised access for a period of up to two hours per fortnight. His Honour further ordered that a property owned by the parties was to be sold and after discharge of the mortgage, and the payment of fees and charges associated with the sale, the respondent was to receive 70% of the sale proceeds and the appellant was to receive 30%. An amount of $25,000 was to be set aside to meet any capital gains tax liability of the respondent and the appellant was to meet all rates, taxes and other charges payable in respect of the property.
The appellant appeals against the orders made by the primary judge.

Background

The parties met in approximately March 2003. At the time the appellant was 32 years of age and the respondent was 35. The respondent is a chartered accountant and at that time was employed as a chief financial officer.…

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 D v B [No 2]

Details

AGLC: D v B [No 2] [2012] WASCA 265
Case: [2012] WASCA 265
Decision Date: 14 DECEMBER 2012

CaseChat Overview and Summary

The appeal concerns a decision of the Family Court of Western Australia, where Moncrieff J made orders regarding the custody and access of two children born from the relationship between the appellant (father) and the respondent (mother), along with a property settlement. The primary judge ruled that the mother would have sole parental responsibility and the father would have supervised fortnightly access for up to two hours. Additionally, the judge ordered the sale of a jointly owned property, with the mother receiving 70% of the proceeds after mortgage discharge and the father receiving 30%. The father appeals against these orders, particularly the supervision condition on his access to the children and the property division.

The legal issues before the court included whether the primary judge was correct in imposing supervised access on the father due to concerns of psychological abuse and inappropriate behaviour towards the children. This decision hinged on the relevance of the father's prior conduct. Additionally, the court examined whether the property settlement was against the weight of the evidence, focusing on the contributions of both parties and the overall fairness of the division.

In addressing the appeal, the court found that the primary judge had adequately considered the evidence regarding the father's conduct and determined that unsupervised access could expose the children to psychological abuse. The court upheld the order for supervised access, noting the importance of the children's psychological well-being. Regarding the property settlement, the court found that the primary judge's decision was reasonable, considering the overall contributions and financial circumstances of both parties.

The appeal was dismissed, and the original orders of the primary judge were upheld. The father's access to the children remained supervised, and the property settlement stood as ordered. The court emphasized the necessity of protecting the children and ensuring a fair division of assets based on the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This is an appeal against a decision of Moncrieff J in the Family Court of Western Australia, in which his Honour made orders for custody and access in relation to the two children of the relationship between the appellant and the respondent, and a financial settlement between them. Following a ten day trial, the primary judge ordered, in substance, that the respondent, the mother, was to have sole parental responsibility for the children and the appellant, the father, was to have supervised access for a period of up to two hours per fortnight. His Honour further ordered that a property owned by the parties was to be sold and after discharge of the mortgage, and the payment of fees and charges associated with the sale, the respondent was to receive 70% of the sale proceeds and the appellant was to receive 30%. An amount of $25,000 was to be set aside to meet any capital gains tax liability of the respondent and the appellant was to meet all rates, taxes and other charges payable in respect of the property. The appellant appeals against the orders made by the primary judge. The parties met in approximately March 2003. At the time the appellant was 32 years of age and the respondent was 35. The respondent is a chartered accountant and at that time was employed as a chief financial officer. She owned a property in a suburb of Perth. The appellant owned a duplex unit in the same suburb and was running a small business. The business ceased operation some time in 2004. Thereafter the appellant appears to have engaged in some renovation work and in share‑trading. In about March 2004, the respondent decided to let her house to a tenant and, in about April 2004, moved into the appellant's duplex unit to live with the appellant in a de facto relationship. Subsequently, the appellant expressed a desire to acquire the other unit comprising the duplex and, in around March 2005, he made an offer to acquire the property, which was accepted. The appellant and the respondent jointly obtained a loan of $400,000 to fund the purchase, based on the respondent's ability to service the mortgage from her income. The appellant was unable to contribute towards servicing the mortgage and, in mid‑2005, the respondent sold her property. The respondent ultimately realised net proceeds of sale of approximately $300,000 and that sum was placed in a mortgage offset account against the $400,000 loan secured against the duplex. This left the parties with a net mortgage to service of approximately $100,000. The parties' first child, L, was born in 2005. The two duplex units were sold in June 2007 for $790,000 each and, in August 2007, the parties acquired another property (the property), for the sum of $1,550,000. They moved into the property in December 2007. Their second child, J, was born in 2008. In June 2009, the parties separated. The appellant continued to reside in the property, at the same time undertaking work to complete a proposed subdivision of it.

Ratio Decidendi

Legal Principle Established

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