FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Danaher & Danaher [2023] FedCFamC2F 1058
File number(s): NCC 1858 of 2021 Judgment of: JUDGE BETTS Date of judgment: 18 August 2023 Catchwords: FAMILY LAW – Parenting – one child, aged 8 years – where the parents currently live some distance apart – where the father has complex mental health issues – where the mother raises risk issues concerning the father’s mental health if he were to spend time with the child unsupervised – where the father seeks a gradual build-up of unsupervised time with the child during the school holidays – where the father seeks to be able to take the child to New Zealand – where the Court considers that the father poses no unacceptable risk to the child – where the Court orders that the father spend unsupervised time with the child with appropriate safeguards – best interest of the child.
FAMILY LAW – Property – fourteen year marriage – where the husband seeks 75% of the net assets – where the wife seeks 65% of the net assets – where the husband owned a property in New Zealand prior to the relationship – where the husband’s mother has a life tenancy in the New Zealand property – where the husband is in receipt of medical invalidity benefits and where wife remains in employment with primary care of the child – how the Court should deal with the husband’s New Zealand property – just equitable outcome.
Legislation: Family Law Act 1975 (Cth), Pt VII and Pt VIII
Land Transfer Act 1952
Land Transfer Act 2017
Cases cited: Black v. Kellner (1992) FLC 92-287
Harridge and Anor & Harridge and Anor [2010] FamCA 445
Isles & Nelissen [2022] FedCFamC 1A 97
M & M (1988) FLC 91-979
Mallett & Mallett (1984) FLC 91-507
MRR & GR (2010) FLC 93-424
Stanford & Stanford (2012) FLC 93-518
Division: Division 2 Family Law Number of paragraphs: 312 Date of last submission/s: 1 May 2023 Date of hearing: 17, 18 November 2022, 16 February 2023 and 1 May 2023 Place: Newcastle Solicitors for the Applicant: Self-represented litigant Solicitors for the Respondent: Self-represented litigant ORDERS
NCC 1858 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DANAHER
Applicant
AND: MS DANAHER
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
18 AUGUST 2023
THE COURT ORDERS THAT:
PARENTING ORDERS
1.That all previous parenting orders be discharged.
2.That the Mother have sole parental responsibility for the major long-term issues of the child X born in 2015 (“X”).
3.That X live with the Mother.
4.That X spend time with the Father as agreed in writing between the parents, and failing agreement as follows:
(a)during the Queensland end of term 3 school holidays in 2023, for five (5) consecutive days in Town B as follows:
(i)from 9am to 1pm on day 1;
(ii)from 9am to 2pm on day 2;
(iii)from 9am to 3pm on day 3;
(iv)from 9am to 4pm on day 4;…
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- Case
- [2023] FedCFamC2F 1058
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CaseChat Overview and Summary
The primary legal issues addressed by the court were whether the father posed an unacceptable risk to the child if unsupervised time was permitted, and if so, what safeguards could be implemented to mitigate that risk. The court also had to determine an equitable division of the couple's property, taking into account the husband's pre-marital property in New Zealand, his receipt of medical invalidity benefits, and the wife's primary care responsibilities for the child.
In its reasoning, the court found that the father did not pose an unacceptable risk to the child and could engage in unsupervised time with appropriate safeguards. The court ordered a gradual build-up of unsupervised time during the school holidays, starting with shorter periods and increasing over time. The court also specified locations and times for the unsupervised visits, with restrictions on travel away from certain areas to ensure the child's safety. In relation to the property division, the court considered the husband's pre-marital property in New Zealand, which was subject to a life tenancy held by his mother, and the wife's employment status and care responsibilities for the child. The court ordered that the husband's New Zealand property remain with him, but he was required to contribute to the wife's financial support and the child's welfare.
The court's final orders included discharging all previous parenting orders and granting sole parental responsibility for major long-term issues to the mother, with the child living with her. Unsupervised time with the father was to be arranged by the parents, with specific schedules and conditions outlined to ensure the child's safety and welfare. The court's property division order reflected the need for an equitable outcome considering the unique circumstances of the case.
Orders
Orders of the court
NCC 1858 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR DANAHER
Applicant
AND:
MS DANAHER
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
18 AUGUST 2023
THE COURT ORDERS THAT:
PARENTING ORDERS
1. That all previous parenting orders be discharged.
2. That the Mother have sole parental responsibility for the major long-term issues of the child X born in 2015 (“X”).
3. That X live with the Mother.
4. That X spend time with the Father as agreed in writing between the parents, and failing agreement as follows:
(a) during the Queensland end of term 3 school holidays in 2023, for five (5) consecutive days in Town B as follows:
(i) from 9am to 1pm on day 1;
(ii) from 9am to 2pm on day 2;
(iii) from 9am to 3pm on day 3;
(iv) from 9am to 4pm on day 4; and
(v) from 9am to 5pm on day 5;
with such time to occur on dates nominated in writing by the Father to the Mother at least fourteen (14) days prior;
(b) during the Queensland end of term 4 school holidays in 2023, for ten (10) consecutive days as follows:
(i) from 9am to 5pm on day 1 in Town B;
(ii) from 9am to 5pm on day 2 in Town B;
(iii) from 9am to 5pm on day 3 in Town B;
(iv) from 9am on day 4 to 12 noon on day 5, with the Father not to take X more than 50 kilometres away from Town B;
(v) from 9am on day 6 until 12 noon on day 8, with the Father not to take X more than 50 kilometres away from Town B;
(vi) from 9am on day 9 until 2pm on day 10, with the Father not to take X more than 50 kilometres away from Town B;
with such time to occur on dates nominated in writing by the Father to the Mother at least twenty-eight (28) days prior and not to include Christmas Day;
(c) during the Queensland end of term 1 school holidays in 2024:
(i) from 9am on day 1 to 2pm on day 4;
(ii) from 9am on day 5 to 2pm on day 8;
with such time to occur on dates nominated in writing by the Father to the Mother at least twenty-eight (28) days prior and the time may include X’s birthday;
(d) during the Queensland end of term 2 and end of term 3 school holidays in 2024:
(i) from 9am on the first Saturday after school finishes to 2pm on the second Sunday;
(e) during the Queensland end of term 4 school holidays in 2024:
(i) from 9am on the first Saturday after school finishes to 5pm on the third Saturday.
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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