DALGLEISH & DALGLEISH

Case [2020] FCCA 1833

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALGLEISH & DALGLEISH [2020] FCCA 1833

Catchwords:
FAMILY LAW – Parenting – completely different parenting styles apply – enmeshment of the young teenage girls with the Mother and embroiling them directly in the litigation – alleged estrangement of the girls from the Father – allegations by the Mother of the Father being financially and emotionally controlling during and after the relationship – allegations by the Mother against the Father of sexual assault during the relationship when she asked him to hypnotise her on three separate occasions to aid her sleep – family therapy underway – detailed family report prepared – all indications are that the children are “driving the parenting bus” – need for assisted re-orientation of the children with the Father – Mother embroiling the children’s school in the litigation seeking information for use in the litigation as well as circulating parts of the Family Report contrary to s.121 of the Family Law Act 1975.

Property– joint Applications for interim property distribution but competing claims for amount to be distributed – Wife’s Application for spousal maintenance – orders made for both Applications – spousal maintenance to be paid as a lump sum out of proceeds of sale of former marital residence in circumstances where the Husband has paid, and continues to do so, significant child support and the significant school fees for both children – regular discussion about immense cost already incurred by both parties in legal fees (each around $100,000) and yet in certain areas basic submissions regarding spousal maintenance and other things not made – strong encouragement to resolve matters by creative solutions.

Procedure – failure of lawyers, including Senior Counsel, to comply with Court Orders regarding length of submissions – failure of lawyers to comply with Practice Direction of the Court regarding length of Affidavits used in interim hearing – no Application by Wife to seek leave for reliance upon longer Affidavits and submissions – possible formal defiance of Court Orders.  

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(3)(a) – (m), 72(1), 74, 75(2), 80, 121.

Cases cited:

AMS v AIF (1999) 199 CLR 160

Anison & Anison (2019) 59 Fam LR 581

AON Risk Services Limited v Australian National University (2009) 239 CLR 175

Beckham v Desprez (2017) 55 Fam LR 310

Collu & Rinaldo [2010] FamCAFC 53

DJM & JLM (1998) 23 Fam LR 396

Elei & Dodt (2018) FLC 93-841

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303

Garston & Yeo (No.2) [2019] FamCAFC 139

Hall v Hall (2016) 257 CLR 490

K v P (2008) 216 FLR 445

Maroney & Maroney [2009] FamCAFC 45

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) 41 Fam LR 483

Mitchell v Mitchell (1995) 19 Fam LR 44

Moose & Moose (2008) FLC 93-375

Rankin & Rankin (2017) FLC 93-766

Slater v Light (2011) 45 Fam LR 41

Strahan v Strahan (Interim Property Orders) (2010) 241…

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Details
AGLC
DALGLEISH & DALGLEISH [2020] FCCA 1833
Case
[2020] FCCA 1833
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge WJ Neville presided over proceedings involving competing parenting and property claims between the parties, identified as the Applicant Husband and the Respondent Wife. The parenting dispute was characterised by significantly different parenting styles, allegations of the children's enmeshment with the Mother and their estrangement from the Father, and the Mother's claims of financial and emotional control by the Father, as well as allegations of sexual assault. The court also noted that the children appeared to be unduly influencing the parenting arrangements. In relation to property, the parties sought interim distributions, with competing claims as to the amounts, and the Wife also sought spousal maintenance.

The court was required to determine the appropriate interim property distribution, the quantum and method of payment for spousal maintenance, and to establish a parenting regime that would facilitate a re-orientation of the children with the Father. Additionally, the court addressed concerns regarding the lawyers' compliance with court orders and practice directions concerning the length of submissions and affidavits, and the Mother's alleged circumvention of section 121 of the *Family Law Act 1975* by involving the children's school and circulating parts of the Family Report.

In its reasoning, the court acknowledged the significant legal costs already incurred by both parties and encouraged creative solutions. For the property distribution, the court ordered interim payments of $450,000 to the Wife and $80,000 to the Husband. Spousal maintenance was ordered as a lump sum of $15,600 to the Wife, payable from the proceeds of sale of the former marital residence, notwithstanding the Husband's substantial contributions to child support and school fees. Regarding parenting, the court implemented a preliminary three-month "re-orientation period" to allow the Father to spend time with the children, to be facilitated by an agreed third party, with a structured increase in contact over subsequent months. The court also directed the Independent Children's Lawyer to meet with the children to explain the court's orders and ascertain their views.

Finally, the court ordered the parties to notify the Court within 14 days whether they would attend arbitration, failing which the matter would remain listed for a final hearing. The court also made specific orders regarding the investment of remaining sale proceeds and the notification of the Court regarding any agreement reached.

Orders

Orders of the court

Property Orders

1.

The parties do all acts and things necessary to cause the release of the following sums by way of by way of interim property distribution:

(a) $450,000 to the Respondent Wife; and

(b) $80,000 to the Applicant Husband.

2.

The Applicant Husband pay the Respondent Wife by way of spousal maintenance a lump sum of $15,600. This sum is to be paid out of the capital sum currently held in the controlled monies account and is in addition to the interim property distribution referred to in Order 1 herein.

3.

Within 7 days of the date of these Orders, being by 14 July 2020, the parties are to do all acts and things to arrange for the balance of funds currently held in the controlled monies account to be invested as agreed in writing between the parties.

4.

Within 7 days of the date of these Orders, being by 14 July 2020, parties are to notify the Court via email to Associate.JudgeWJNeville@federalcircuitcourt.gov.au as to what agreement has been reached regarding the investment of the remainder of the proceeds of sale.

Parenting Orders

5.

For a period of 3 months following the date of these Orders, being until 7 October 2020, a preliminary “re-orientation period” is to occur. The Applicant Father is to spend time with the children X (born: 2007) and Y (born: 2009) (“the children”) and an agreed third party on no less than one occasion per fortnight, at a time and place to be agreed in writing between the parties

6.

Absent any other agreement in writing between the parties, the time with arrangements outlined in Order 5 are to occur on a minimum of 6 occasions during the “re-orientation period”.

7.

Thereafter, time with arrangements are to be as follows:

(a) Between 7 October 2020 and 7 December 2020, the Applicant Father spend time with the children on alternate weekends for a period of up to four hours, on dates and times to be arranged and agreed between the parties.

(b) Between 7 December 2021 and 7 March 2021, the Applicant Father spend time with the children each alternate weekend from 10:00am until 7:00pm on Saturday.

(c) Between 7 March 2021 and 7 June 2021, the Applicant Father spend time with the children each alternate weekend from 10:00am Saturday until 12:00pm on Sunday.

General Orders

8.

Within 14 days of the date of these Orders, being by 21 July 2020, the parties are to advise the Court via email to Associate.JudgeWJNeville@federalcircuitcourt.gov.au whether they will attend arbitration and, if so, provide a timeline for when this will occur. Absent agreement to attend arbitration, the matter will remain listed for Final Hearing on a date and time to be advised by the Court.

NOTATION:

(A) It is requested that, prior to the recommencement of the Applicant Father’s time with the children, the Independent Children’s Lawyer meet with the children and explain the Court’s reasons, decisions and Orders, and inform the children that the Court considers the views they expressed in the Family Report to be very important;

(B) It is further requested that the Independent Children’s Lawyer meet with the children at the end of the 3 month re-orientation period to ascertain any relevant views. These views are to be conveyed to the parents. Subject to the assessment of the Independent Children’s Lawyer at that time, the Independent Children’s Lawyer may request that the matter return to Court for further directions.

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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