DEGENAAR & DEGENAAR - [2020] FCCA 451

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEGENAAR & DEGENAAR

[2020] FCCA 451

Catchwords:
FAMILY LAW – Interim hearing – parenting – multiple risks – prescription medication – mental health – family violence – risk of harm to child – restraints on parents – property – interim costs – parties’ litigation costs – whether husband in stronger financial position than wife – parallel court proceedings initiated despite restraint on husband – Hogan order – interim property distribution – parties’ contributions – where mother bears much of the financial responsibility for child – property unilaterally placed on sale by husband – parallel court proceeding costs order outstanding – sale of property.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 79, 117

Cases cited:

Colgate-Palmolive v Cussons Pty Ltd [1993] FCA 801; 46 FCR 225
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; 81 ALR 397
Goode & Goode [2006] FamCA 1346
Kohan & Kohan [1992] FamCA 116
Munday & Bowman (1997) FLC 92–784
Peters & Peters (Unreported, FamCA, 9 March 1994)
Ragatta Developments Pty Ltd v Westpac Banking Corporation (Unreported, FCA, 5 March 1993)
Strahan & Strahan [2009] FamCAFC 166
Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (Unreported, FCA, 3 May 1991)
Zschokke & Zschokke [1996] FamCA 79

Applicant:

MR DEGENAAR

Respondent:

MS DEGENAAR

File Number:

WOC 83 of 2019

Judgment of:

Judge M Neville

Hearing date:

18 February 2020

Date of Last Submission:

18 February 2020

Delivered at:

Sydney

Delivered on:

25 February 2020

REPRESENTATION

Solicitors for the Applicant:

Ms Mitchell of Hansons Lawyers

Counsel for the Respondent:

Mr Havenstein

Solicitors for the Respondent:

Kells The Lawyers

Solicitors for the Independent Children’s Lawyer:

Mr Amos of Legal Aid NSW Wollongong

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

Orders 8 to 14 of the interim orders dated 18 March 2019 are discharged.
The child, X (born in 2016) live with the mother.
The child spend time with the father as follows:
(a)Stage 1:
for a period of eight (8) weeks, with such time commencing from Sunday 23 February 2020 as follows:
(i)     each Sunday from 10:30am until 2:30pm;
(ii)    each Tuesday from 12:00noon until 4:00pm.
(b)Stage 2:
following the conclusion of Order 3.1 and for a period of eight (8) weeks, with such time commencing from Sunday 19 April 2020 as follows:
(i)each Sunday, except for Sunday 10 May 2020, from 10:30am until 4:30pm;
(ii)    on Saturday 9 May 2020 from 10:30am until 4:00pm;
(iii)   each Tuesday from 12:00noon until 4:00pm.
(c)Stage 3:
following the conclusion of Order 3.2 and pending further order, with such time commencing from Sunday 14 June 2020 as follows:
(i)each Sunday from 9:00am until 5:00pm;
(ii)each Tuesday from 12:00noon until 4:00pm;
(iii)on Christmas Day from 1:00pm until 5:00pm;
(iv)on child’s birthday from 1:00pm until 5:00pm.
(v)on the Saturday prior to Mother’s Day from 9:00am until 5:00pm.
The father’s time with the child is suspended as follows:
(a)on Mother’s Day from 9:00am until 5:00pm;
(b)on Christmas Day from…

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

AGLC: DEGENAAR & DEGENAAR [2020] FCCA 451
Case: [2020] FCCA 451
Decision Date: 25 February 2020

CaseChat Overview and Summary

The parties, Mr and Mrs Degenaar, were before M Neville J in the Family Court of Australia concerning interim parenting and property matters. The dispute involved allegations of multiple risks to the child, including the husband's alleged use of prescription medication, mental health issues, and family violence. The wife sought orders for restraints on the husband and an interim property distribution, as well as interim costs.

The court was required to determine several key legal issues. These included whether there was a real risk of harm to the child necessitating specific orders, the appropriate interim property distribution given the parties' respective contributions and the husband's unilateral sale of a property, and the allocation of interim costs, particularly in light of parallel court proceedings initiated by the husband despite a restraint order and an outstanding costs order from those proceedings.

M Neville J considered the evidence presented regarding the risks to the child and applied principles relating to the paramountcy of the child's welfare. The court also addressed the principles governing interim property orders, including the need to preserve assets and consider the parties' contributions and financial positions. The husband's actions in selling property and initiating further proceedings were taken into account when determining the appropriate interim financial arrangements and costs.

The court made orders for an interim property distribution, including provisions relating to the sale of the property. Further, interim costs orders were made, reflecting the court's assessment of the parties' financial positions and the conduct of the litigation.

Orders