Dent and Staff & Anor - [2017] FamCA 194

FAMILY COURT OF AUSTRALIA

DENT & STAFF AND ANOR

[2017] FamCA 194

FAMILY LAW – CHILDREN – With whom a child spends time – Where the father moved about 750km away from the mother and children after the parties’ separation – Where the father’s conduct is responsible for the deterioration in the children’s relationships with him – Where past family violence ousted the presumption of equal shared parental responsibility – Where the father lacks insight into the children’s emotional needs – Ordered the mother shall have sole parental responsibility – Ordered the children shall live with the mother and spend time with the father on six occasions each year in the region close to the mother’s home.

FAMILY LAW – PROPERTY SETTLEMENT – Where the father was bankrupted in 2016 – Where the mother is the sole proprietor of the former matrimonial home – Concluded the father (and his trustee in bankruptcy) could not establish the existence of an equitable interest in the former matrimonial home pursuant to either a resulting or constructive trust – Concluded it would not be just and equitable to make any property adjustment order.

Australian Passports Act 2005 (Cth) s 11
Corporations Act 2001 (Cth) s 601AD
Family Law Act 1975 (Cth) ss 4, 60CC, 61DA, 65D, 65Y, 70M, 70N, 72, 79
Family Law Regulations 1984 (Cth) rr 4 and schedule 1A
Care of Children Act 2004 (NZ) ss 8, 81, 82, 83, 84, 85, 86

Allen v Snyder (1977) 2 NSWLR 685
Bannister v Bannister (1948) 2 All ER 133
Baumgartner v Baumgartner (1987) 164 CLR 137
Bevan & Bevan (2013) 49 Fam LR 387
Calverly v Green (1984) 155 CLR 242
Martin v Martin (1959) 110 CLR 297
Muschinski v Dodds (1985) 160 CLR 583
Rice v Asplund (1979) FLC 90-725
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Dent

RESPONDENT:

Ms Staff

INTERVENER:

Trustee in Bankruptcy

INDEPENDENT CHILDREN’S LAWYER:

Ms Dawson, Legal Aid NSW Gosford

FILE NUMBER:

NCC

3354

2014

DATE DELIVERED:

29 March 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

13, 14, 15 & 16 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fisher

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Mr Kelly

SOLICITOR FOR THE RESPONDENT:

Derham Houston Lawyers

COUNSEL FOR THE INTERVENER:

Mr Davies

SOLICITOR FOR THE INTERVENER:

O'Neill Partners Incorporating Sally Nash & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dawson, Legal Aid NSW Gosford

Orders

All former orders in respect of the following children are discharged:
(a)B, born … 2006;
(b)C, born … 2007; and
(c)D, born … 2010.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
Subject to Order 6, the mother and father shall take all reasonable steps to ensure the children spend time with the father from 9.00 am until 5.00 pm on the first Sunday of April, June, August, October, December, and February…

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: Dent and Staff & Anor [2017] FamCA 194
Case: [2017] FamCA 194
Decision Date: 29 March 2018

CaseChat Overview and Summary

Austin J of the Family Court of Australia considered a dispute between a mother and father concerning their three children, B, C, and D. The primary dispute involved the children's living arrangements and parental responsibility, following the father's relocation approximately 750km away from the mother and children after the parties' separation. The court also addressed property settlement issues, where the father had been bankrupted in 2016 and the mother was the sole proprietor of the former matrimonial home.

The court was required to determine the most appropriate parenting orders for the children, specifically whether the presumption of equal shared parental responsibility applied, given past family violence. It also needed to assess the father's insight into the children's emotional needs and the impact of his conduct on their relationships. In relation to property, the court had to consider whether the father, or his trustee in bankruptcy, had established an equitable interest in the former matrimonial home through a resulting or constructive trust, and whether any property adjustment was just and equitable.

Regarding the parenting orders, Austin J found that past family violence had ousted the presumption of equal shared parental responsibility. The court concluded that the father's conduct had been responsible for the deterioration of the children's relationships with him and that he lacked insight into their emotional needs. Consequently, the mother was granted sole parental responsibility, and the children were ordered to live with her. The father was granted limited time with the children, specifically on six occasions each year on the first Sunday of specified months, in the region close to the mother's home, with specific exchange arrangements and provisions for suspension of contact if the father failed to facilitate two consecutive occasions. The court also made orders restraining the father from approaching the children's school and from electronically recording exchanges, and prohibited corporal punishment and denigration of the other parent. The mother was permitted to take the children outside of Australia. In the property settlement, the court concluded that neither the father nor his trustee in bankruptcy had established an equitable interest in the former matrimonial home and that no property adjustment order was just and equitable.

Orders

Orders of the court

All former orders in respect of the following children are discharged:

(a) B, born … 2006;

(b) C, born … 2007; and

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

Subject to Order 6, the mother and father shall take all reasonable steps to ensure the children spend time with the father from 9.00 am until 5.00 pm on the first Sunday of April, June, August, October, December, and February each year.

For the purposes of implementing Order 4, the mother and father (or their nominees) shall exchange the children between them at the McDonalds Restaurant at Suburb T, NSW.

If the father fails to allow the children to spend time with him on two consecutive occasions pursuant to Order 4, then Order 4 is suspended and any time spent by the children with the father thereafter shall be at the discretion of the mother.

Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of any school attended by the children.

The mother and father shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:

(a) By the father being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays, Father’s Day, and Christmas Day, and

(b) By the mother promptly sending to the father any letters, cards, photographs, or other written communication that the children, or any of them, wish to be conveyed to the father.

The father is restrained from electronically recording, either visually or aurally, the mother, her nominee, or the children at or about any exchanges of the children pursuant to Order 5.

10.

The mother and father are restrained from causing or permitting the infliction of corporal punishment upon the children.

11.

The mother and father are restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

12.

The mother and father shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

13.

The mother shall authorise and request the principals of any school attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the children.

14.

The mother and father shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address and mobile telephone number.

15.

Pursuant to s 65Y(2)(b) of the Family Law Act, the mother (but not the father) is permitted to take the children outside the Commonwealth of Australia.

16.

Within seven days hereof the mother shall cause the children to be delivered to the Independent Children’s Lawyer to have explained to them the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

17.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

18.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

19.

Costs are reserved for 28 days.

20.

Any and all other outstanding applications are dismissed.

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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