Delaney & Carberry - [2008] FamCA 1113

FAMILY COURT OF AUSTRALIA

DELANEY & CARBERRY

[2008] FamCA 1113

FAMILY LAW – CHILDREN – allegations against the father relating to voyeurism of his sister, women in shower block and a young girl – allegations against the father relating to exposing himself to young girls – allegations against the father relating to child pornography – children live in Western Australia and father lives in Australian Capital Territory – the father’s time with the children has been supervised since 2005 – whether there is a meaningful relationship – whether the father is a risk to his own children

FAMILY LAW – PROPERTY – seven year marriage – initial contributions from both parties – initial contributions used for joint assets – characterisation of costs of supervision, legal and expert fees – adjustment in favour of wife for contributions during the marriage – adjustment in favour of wife for s 75(2) factors – just and equitable

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

M v M (1988) CLR (1988) 166 CLR 69
B v B (1988) 82 ALR 584
Briginshaw v Briginshaw (1938) 60 CLR 366

APPLICANT:

Ms Delaney

RESPONDENT:

Mr Carberry

INDEPENDENT CHILDREN’S LAWYER:

Ms Burgess

FILE NUMBER:

586

2005

DATE DELIVERED:

22 December 2008

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

17 June 2008; 12 - 14 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gill

SOLICITOR FOR THE APPLICANT:

Ms Simpson

COUNSEL FOR THE RESPONDENT:

Self-represented

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Burgess

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Orders

The mother have sole parental responsibility for the children, a son T born on … April 2002 and a daughter E born on … December 2003.
The children live with the mother.
The father will spend time with the children on two occasions per year:
(a) The first occasion will occur on the last weekend in April. This occasion will occur in Perth.
(b) The second occasion will occur on the last weekend in November. This occasion will occur in Melbourne.
The time the father will spend on each of those occasions will be from 4pm Friday until 8pm Friday; and from 10am Saturday until 5pm Saturday and from 10am Sunday until 3pm Sunday.
The time the father will spend will be supervised by a professional supervision agency.
The mother will ensure that the father remains on the S Company travel staff register.
The father will pay for his travel to Perth and all associated costs of his stay including accommodation and car hire. The father will pay for any costs of entertainment for the children if they are not included in the cost of supervision.
The mother will pay for her and the children’s travel to Melbourne and for any costs of the overnight accommodation during the time in Melbourne. The father will pay for any costs associated with collecting the children and their entertainment, if they are not included in the cost…

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 Delaney & Carberry

Details

AGLC: Delaney & Carberry [2008] FamCA 1113
Case: [2008] FamCA 1113
Decision Date: 22 December 2008

CaseChat Overview and Summary

The case of *Delaney & Carberry* concerned a dispute between a mother and father regarding their children and their property settlement. The children resided in Western Australia, while the father lived in the Australian Capital Territory. The father's time with the children had been supervised since 2005 due to serious allegations made against him, including voyeurism, indecent exposure, and possession of child pornography.

The court was required to determine whether the father posed a risk to his children and whether a meaningful relationship existed between them, given the circumstances. In relation to the property settlement, the court had to consider the initial contributions of both parties to their seven-year marriage, the characterisation of various costs incurred during the proceedings, and make adjustments based on contributions during the marriage and section 75(2) factors to achieve a just and equitable outcome.

The court ordered that the mother have sole parental responsibility for the children, with the children living with her. The father was granted limited, supervised time with the children twice a year, in Perth and Melbourne, with specific conditions regarding travel costs and supervision fees. The court also made detailed orders regarding communication between the father and children, including telephone calls and letters, and specified how property, including shares and proceeds from the sale of a house, was to be divided between the parties.

Orders

Orders of the court

The mother have sole parental responsibility for the children, a son T born on … April 2002 and a daughter E born on … December 2003.

The children live with the mother.

The father will spend time with the children on two occasions per year:

(a) The first occasion will occur on the last weekend in April. This occasion will occur in Perth.

(b) The second occasion will occur on the last weekend in November. This occasion will occur in Melbourne.

The time the father will spend on each of those occasions will be from 4pm Friday until 8pm Friday; and from 10am Saturday until 5pm Saturday and from 10am Sunday until 3pm Sunday.

The time the father will spend will be supervised by a professional supervision agency.

The mother will ensure that the father remains on the S Company travel staff register.

The father will pay for his travel to Perth and all associated costs of his stay including accommodation and car hire. The father will pay for any costs of entertainment for the children if they are not included in the cost of supervision.

The mother will pay for her and the children’s travel to Melbourne and for any costs of the overnight accommodation during the time in Melbourne. The father will pay for any costs associated with collecting the children and their entertainment, if they are not included in the cost of supervision.

The mother will pay one third of the cost of professional supervision in Perth and in Melbourne. The father will pay two thirds of the cost of professional supervision in Perth and Melbourne. Such payment will be made in accordance with the method and time requested by the supervision agency.

10.

Notwithstanding the above periods of time referred to, the two occasions in the year will be determined by the availability of a professional supervisor. Each of the parents will do whatever is reasonable to cooperate to ensure that the two periods of time with the father occur to meet the availability of the supervisors.

11.

The father may communicate by telephone with the children for periods not exceeding 10 minutes for each child. This telephone call may be made by him on each Sunday evening and on Christmas day and on each of the children’s birthdays and on the father’s birthday and on Fathers’ Day between the hours of 6 – 7pm (Western Australia time) unless the parents agree on another time and day.

12.

The mother may monitor the telephone calls by the father with the children (but not otherwise interfere with the call) for a period of one year from the date of these orders.

13.

The father may communicate with the children by letters from the date of these orders and by e-mail after E turns 10 years old.

14.

The father may send the children gifts on their respective birthdays.

15.

The mother will encourage the children to receive the father’s telephone calls.

16.

The wife retain all shares in her name and the proceeds of sale of the Ford Festiva motor vehicle.

17.

The husband retain all shares in his name and the Magna Mitsubishi motor vehicle.

18.

The wife receive $250,460.85 from the proceeds of the sale of the house being held in the joint cash management account.

19.

The husband receive $$90,617.02 from the proceeds of the sale of the house being held in the joint cash management account.

20.

If there is any money remaining or any liability remaining in relation to the joint cash management account, it be divided in an amount of 62% to the wife and 38% to the husband.

21.

The wife transfer to the husband all her right, title and interest in the max-direct account, the shares in Century Australia and the Commbank investment account.

22.

Each party retain all other items in his or her possession.

23.

Any submissions about costs will be in writing and filed in the Family Court Registry in Canberra on or before last working day of January 2009.

24.

All material produced subpoena will be returned to the person producing it (or destroyed at the option of the person producing it) by the Registry at Canberra at the conclusion of the Appeal period.

25.

Any exhibits tendered in the proceedings will be returned to the person from whose custody the material came, or if tendered from subpoenaed material, to the producer of such material.

26.

This matter is removed from the Pending Cases Inventory.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.