Dawson & Dawson - [2022] FedCFamC1F 58

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dawson & Dawson [2022] FedCFamC1F 58

File number(s): SYC 7812 of 2018

Judgment of: SCHONELL J

Date of judgment: 14 February 2022

Catchwords: FAMILY LAW – PROPERTY – Interim application – Where the mother seeks orders for the sale of shares held in the father’s name – Where these orders are sought for the purposes of meeting the costs related to the single expert, school fees and legal fees – Consideration of whether it is in the interests of justice to make a s 79 order – Interim property orders sought by the mother made – Orders stayed for a period of 30 days.

Legislation: Family Law Act 1975 (Cth) ss 60CC, 79, 80

Cases cited:
Bing & Bing (2007) FLC 93-318; [2007] FamCA 418

Medlow & Medlow (2016) FLC 93-692; [2016] FamCA 34

Poletti & Poletti (1990) 15 Fam LR 794; [1990] FamCA 79

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

Wenz v Archer (2008) 40 Fam LR 212; [2008] FMCAfam 1119

Division: Division 1 First Instance

Number of paragraphs: 49

Date of hearing: 10 February 2022

Place: Sydney

Solicitor for the Applicant: Sexton Family Law

Solicitor for the Independent Children's Lawyer: Legal Aid NSW

The First Respondent The First Respondent did not appear in these proceedings

The Second and Third Respondents The Second and Third Respondent were excused from these proceedings.
ORDERS

SYC 7812 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DAWSON

Applicant

AND:
MR DAWSON

First Respondent

MR FLYNN

Second Respondent

MS FLYNN

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

14 FEBRUARY 2022

THE COURT ORDERS THAT:
1.That the applicant mother (“the mother”) and the respondent father (“the father”) shall, for the purpose of the preparation of Dr C’s report ordered on 22 November 2021:
(a)attend all appointments made with Dr C;
(b)ensure the attendance of the children at such times and dates as directed by Dr C; and
(c)comply with all reasonable directions and requests made by Dr C to assist in preparation of his report.

2.In preparing his updating report, Dr C be requested to consider the following matters:
(a)the terms of reference contained in the Orders made on 14 August 2019;
(b)whether, in light of events, which have occurred since preparation of his expert report dated 4 December 2019, there is any change to the opinions expressed and recommendations made in that report;
(c)whether the children or any of them are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in the care of either parent;
(d)any views expressed by any the children and any factors that may affect the weight to be accorded to those views;
(e)any current recommendation as to the live with and spend time with arrangements which may be appropriate; and
(f)any other matter considered relevant.

3.The mother and the father shall each…

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 Dawson & Dawson

Details

AGLC: Dawson & Dawson [2022] FedCFamC1F 58
Case: [2022] FedCFamC1F 58
Decision Date

CaseChat Overview and Summary

In Dawson & Dawson, the mother sought an interim property order for the sale of shares held in the father's name to meet the costs related to the single expert, school fees, and her legal fees. The court considered the legal issues involved in making such an order, including whether it was in the interests of justice and if a case had been established for the making of a s 79 order. The court found that the father controlled the majority of the parties' assets, and the mother lacked the necessary funds to meet the requested costs. The court decided that it was appropriate to make the interim property orders as sought by the mother, as it was in the best interests of the children and would not prejudice the father's final application for financial adjustment.

The court granted the mother's application for interim property orders, staying the implementation of the orders for a period of 30 days to allow the father an opportunity to appear and make submissions. The court ordered the sale of a portion of the father's shares to meet the costs of the single expert, school fees, and the mother's legal fees. The categorisation of the payments for school fees and expert costs was left to be determined at the final hearing. The court also granted the Independent Children's Lawyer's request for leave to issue subpoenas and scan or photocopy documents for the purpose of providing them to the single expert for the updating expert report.

Orders