Danson and Danson and Anor (No 2) - [2012] FamCA 1143

FAMILY COURT OF AUSTRALIA

DANSON & DANSON AND ANOR (NO 2)

[2012] FamCA 1143

FAMILY LAW – INTERIM PROPERTY ORDER – Spouse maintenance – Whether there is a demonstrated need by the wife – Where wife entitled to half rental income from a jointly owned property.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Danson

RESPONDENT:

Ms Danson

INTERVENOR:

Mr B

INDEPENDENT CHILDREN’S LAWYER:

Abrams Turner Whelan

FILE NUMBER:

SYC

3088

2011

DATE DELIVERED:

29 November 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

16 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maurice

COUNSEL FOR THE RESPONDENT:

Ms Gillies

COUNSEL FOR THE INTERVENOR:

Mr Millar

INDEPENDENT CHILDREN’S LAWYER

Ms Saltoon

Orders:

Pending Further Order

The parties are to do all things necessary to cause any rental income received from their property at C Street, D Town, to be divided equally between them. The parties are to contribute equally to all outgoings in respect of the property at C Street, D Town.
The wife’s application in a case filed 17 August 2012 is otherwise dismissed.
The order sought by the husband for interim property settlement as sought in his response to an application in a case filed 19 September 2012 is refused.
The wife is restrained from discussing with any of the children any matter concerning the conduct of the father towards them. In the event that any of the children make a complaint to the mother about the father’s conduct, she is to listen carefully to the complaint and then, in the absence of the child or children, as soon as possible after the complaint is made, make and keep a note of exactly what the child said. Should the wife have any concern about the words spoken by the child or children, she is to forthwith contact either the Independent Children’s Lawyer or Ms E and advise them of the words she had heard. She is to carefully consider their recommendation in deciding what course of action she takes thereafter.
The wife is restrained from discussing any allegations that she and/or the children have made or may make in future concerning the conduct of the father towards the children or any of the children with any person other than
(a)       A representative of the Department of Family and Community Services;
(b)       Dr E;
(c)       Dr F;
(d)       The wife’s legal representatives;
(e)       The Independent Children’s Lawyer;
(f)        Any other person nominated by the court.
I direct that the wife file and serve a response to the Application in a Case filed in Court by the husband on 16 November 2012 within 14 days from the date hereof. The husband’s application in a case and the wife’s response thereto are listed for hearing on 7 February 2013 at 10 a.m. or such other date which the court may allocate should 7 February not be convenient to the parties.
I reserve each parties’ (including the Independent Children's Lawyer) costs of the hearing…

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.

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Details

Case: [2012] FamCA 1143
Decision Date: 29 November 2012

CaseChat Overview and Summary

In *Danson and Danson and Anor (No 2)*, Le Poer Trench J considered applications by both the husband and wife concerning property settlement and the welfare of the parties' children. The dispute involved the division of rental income and outgoings from a property, interim property settlement, and restrictions on the wife's discussions with the children and third parties regarding the husband's conduct.

The court was required to determine whether to grant interim orders for property settlement, how to manage the rental income and expenses of the C Street property, and what restrictions, if any, should be placed on the wife's communication with the children and others concerning allegations about the husband's conduct. The court also had to consider the wife's application filed on 17 August 2012 and the husband's response to an application filed on 19 September 2012.

The court ordered that rental income from the C Street property be divided equally between the parties, and that they contribute equally to all outgoings. The wife's application of 17 August 2012 was dismissed, and the husband's application for interim property settlement was refused. Significant orders were made restraining the wife from discussing the father's conduct with the children, and from discussing allegations concerning the father's conduct with any person other than specified professionals or court-nominated individuals. The wife was directed to file a response to the husband's application of 16 November 2012, with further hearings scheduled. Costs were reserved.

Orders

Orders of the court

Pending Further Order

The parties are to do all things necessary to cause any rental income received from their property at C Street, D Town, to be divided equally between them. The parties are to contribute equally to all outgoings in respect of the property at C Street, D Town.

The wife’s application in a case filed 17 August 2012 is otherwise dismissed.

The order sought by the husband for interim property settlement as sought in his response to an application in a case filed 19 September 2012 is refused.

The wife is restrained from discussing with any of the children any matter concerning the conduct of the father towards them. In the event that any of the children make a complaint to the mother about the father’s conduct, she is to listen carefully to the complaint and then, in the absence of the child or children, as soon as possible after the complaint is made, make and keep a note of exactly what the child said. Should the wife have any concern about the words spoken by the child or children, she is to forthwith contact either the Independent Children’s Lawyer or Ms E and advise them of the words she had heard. She is to carefully consider their recommendation in deciding what course of action she takes thereafter.

The wife is restrained from discussing any allegations that she and/or the children have made or may make in future concerning the conduct of the father towards the children or any of the children with any person other than

(a) A representative of the Department of Family and Community Services;

(b) Dr E;

(d) The wife’s legal representatives;

(e) The Independent Children’s Lawyer;

(f) Any other person nominated by the court.

I direct that the wife file and serve a response to the Application in a Case filed in Court by the husband on 16 November 2012 within 14 days from the date hereof. The husband’s application in a case and the wife’s response thereto are listed for hearing on 7 February 2013 at 10 a.m. or such other date which the court may allocate should 7 February not be convenient to the parties.

I reserve each parties’ (including the Independent Children's Lawyer) costs of the hearing conducted on 16 November 2012.

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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