FAMILY COURT OF AUSTRALIA
| DEMOPOULOS & FULLARD | [2016] FamCA 930 |
| FAMILY LAW – CHILDREN – Undefended – Where the respondent disengaged from the proceedings and did not attend upon the single expert for the updating report – Where the single expert held serious concerns as to the respondent’s mental health and was of the view she may be suffering from a delusional disorder – Where the respondent has not sought therapeutic intervention – Where the Court is satisfied that the respondent presents an unacceptable risk of harm to the child – Orders made for the child to continue to spend supervised time with the respondent until such time as she completes treatment with a mental health professional. FAMILY LAW – PROPERTY SETTLEMENT – Undefended – Where the only asset for division is the proceeds of sale of the former matrimonial home – Where the applicant made a significant direct contribution to the purchase of the property – Where the parties contributions were otherwise equal – Where the Court finds the parties’ contributions should be assessed fifty-five per cent in favour of the applicant and forty-five per cent in favour of the respondent – Where the applicant will have primary care for the parties’ child – Where the Court finds section 75(2) factors favour a five per cent adjustment in favour of the applicant – Orders made. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65AA, 65DAA, 75(2), 79, 117 Family Law Rules 2004 (Cth) r 19.81 |
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Penfold v Penfold (1980) 144 CLR 311
Stoddard & Glover [2016] FamCA 674
Stoian & Fiening (Costs) [2014] FamCA 944
Wrensted & Eades (2016) FLC 93-697
| APPLICANT: | Mr Dem |
| RESPONDENT: | Dr Fullard |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Karagiannis |
| FILE NUMBER: | SYC | 2390 | of | 2015 |
| DATE DELIVERED: | 4 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 5 September 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Maurice |
| SOLICITOR FOR THE APPLICANT: | McDonell Milne Toltz Family Lawyers |
| FOR THE RESPONDENT: | No appearance by or on behalf of the respondent |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
Orders
Parenting
All previous parenting orders made in these proceedings are discharged.
The applicant is to have sole parental responsibility for the child, B born … 2010 (“the child”).
B is to live with the applicant.
B is to spend time with the respondent on at least one occasion each week, such time to be supervised by D Group, or such other organisation which provides supervision services as the parties may agree from time to time, and at the respondent’s cost.
In the event that the child is unavailable to spend time with the respondent during any week by reason of illness, absence on holidays or other commitments, the child shall make up time with the respondent at such times as may be agreed between the parties and the supervisors.
The applicant is granted leave to provide…
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- AGLC
- DEMOPOULOS & FULLARD [2016] FamCA 930
- Case
- [2016] FamCA 930
- Decision Date
CaseChat Overview and Summary
The court was required to determine appropriate parenting orders, considering the respondent's mental health concerns and the risk to the child. Additionally, the court had to address the property settlement, specifically the division of the proceeds from the sale of the former matrimonial home, which was the sole asset for division. The court also needed to consider whether any adjustments to the property division were warranted under section 75(2) of the Family Law Act 1975 (Cth), particularly in light of the applicant having primary care of the child.
McClelland J reasoned that due to the unacceptable risk of harm posed by the respondent, the child should continue to spend supervised time with her. The court applied principles relating to the paramountcy of the child's welfare and safety, necessitating supervised contact until the respondent engaged with and received a certificate from a mental health professional confirming her fitness for unsupervised care. In relation to property, the court found that while the parties' contributions were otherwise equal, the applicant's significant direct contribution to the purchase of the home warranted a weighting of 55% in her favour. Furthermore, the court considered the section 75(2) factors, which favoured a 5% adjustment in favour of the applicant due to her having primary care of the child.
Consequently, the court ordered that the applicant have sole parental responsibility for the child, with the child to live with the applicant. The respondent was to have supervised time with the child weekly, at her own cost, until she obtained a certificate from a mental health professional confirming her fitness for unsupervised care. The proceeds of the former matrimonial home were to be distributed with a 55% share to the applicant and 45% to the respondent, with a portion held in escrow to cover the respondent's costs of the applicant's legal fees for specific court dates and the final hearing. The respondent was also restrained from attending the child's school and from discussing the proceedings or denigrating the applicant in the child's presence.
Orders
Orders of the court
Parenting
1.
All previous parenting orders made in these proceedings are discharged.
2.
The applicant is to have sole parental responsibility for the child, B born … 2010 (“the child”).
3.
B is to live with the applicant.
4.
B is to spend time with the respondent on at least one occasion each week, such time to be supervised by D Group, or such other organisation which provides supervision services as the parties may agree from time to time, and at the respondent’s cost.
5.
In the event that the child is unavailable to spend time with the respondent during any week by reason of illness, absence on holidays or other commitments, the child shall make up time with the respondent at such times as may be agreed between the parties and the supervisors.
6.
The applicant is granted leave to provide to any organisation engaged to provide supervision of the child’s time with the respondent, a copy of the reports of Dr F in these proceedings and these Orders.
7.
The supervision of the child’s time with the respondent is to continue until such time as she has attended upon a mental health professional recommended by Dr F and following a course of therapy, obtains from that mental health professional a certificate confirming that she is fit to care for the child on an unsupervised basis.
8.
The respondent is to inform the applicant in writing of the name and address of the mental health profession upon whom she is to attend no later than seventy-two (72) hours prior to her initial appointment with such professional.
9.
The parties are granted leave to provide to the mental health professional referred to in Orders (7) and (8) above, a copy of the reports by Dr F in these proceedings once the respondent commences therapy with him or her.
10.
Contemporaneously with providing the applicant with a copy of the certificate referred to in Order (7) above, the respondent shall authorise the mental health professional who issued the certificate to speak with the applicant about her therapy.
11.
The respondent is hereby restrained from attending at the child’s school at those times that the child attends.
12.
The respondent is hereby restrained from:
(a) Discussing these proceedings with the child or within the child’s presence or hearing;
(b) Discussing any allegation made in these proceedings with the child; or
(c) Denigrating the applicant, any member of the applicant’s family or any partner, to the child or within the child’s presence or hearing.
Property
13.
Within seven (7) days of the date of these Orders, the parties are to do all acts and things, execute all documents and writings and give all instructions, authorities and consents necessary to cause the proceeds of sale of the former matrimonial home at G Street, Suburb E, currently held in trust for the parties by P Lawyers, Solicitors, to be distributed in the following manner:
(a) In payment to the applicant the sum of $425 000;
(b) One half of the balance to the applicant;
(c) Subject to Orders (18) and (19) below, the sum of $55 000 which is to be held in escrow; and
(d) The remaining balance to the respondent.
14.
Other than as provided by these Orders, the parties are each entitled to retain the ownership of all other items of property presently in the name, possession or control of each of them respectively, including but not limited to money, shares, investments, motor vehicles, insurances, entitlements to superannuation benefits, furniture, furnishings and household effects, and personal effects.
15.
Other than as provided by these Orders, the parties are each to remain solely responsible for the payment of all and any debts and liabilities presently in the name of each of them respectively.
16.
The parties are each do all acts and things, sign all documents and give all consents necessary to fully implement these Orders.
17.
In the event that the respondent refuses or neglects to execute any deed, document, instrument or writing necessary to give effect to these Orders within seven (7) days of being required to do so under these Orders, then the Registrar of the Family Court of Australia at Sydney is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all such deeds, documents, instruments and writings in the name of the respondent and to do all such acts and things necessary to give validity and operation to these Orders.
Costs
18.
The respondent is to pay the following costs of the applicant, from the sum of $55 000 held in escrow pursuant to Order (13)(c) above, on a party/party basis as agreed or assessed:
(a) Costs of 27 November 2015;
(b) Costs of 20 April 2016;
(c) Costs of 22 August 2016; and
(d) Costs thrown away by the final hearing listed to commence on 26 April 2016 being vacated.
19.
Should the applicant’s costs be agreed or assessed as a sum which is less than $55 000, the balance of the sum held in escrow is to be released to the respondent upon payment being made in accordance with Order (18) above.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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