FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Denton & Denton (No 2) [2024] FedCFamC1F 144
File number(s): SYC 1695 of 2021 Judgment of: ALTOBELLI J Date of judgment: 5 March 2024 Catchwords: FAMILY LAW – PARENTING – Where the father seeks increased time with the child including overnight time – Where the mother is willing to increase time without overnight time – Where the mother cannot afford to obtain a mental health assessment – Order for the child’s time with the father to be gradually increased, including overnight time – Order for the mother to endeavour to obtain mental health assessment – Order for the valuation of properties – Trial directions made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 5 March 2024 Place: Sydney The Applicant: Litigant in person Solicitor for the Respondent: Redline Legal Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 1695 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DENTON
Applicant
AND: MS DENTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.The matter is listed for mention on 9 July 2024 at 9am for the purposes of reviewing the progress of the implementation of the orders made today and to ensure the matter is ready for final hearing.
2.Order 16 made on 14 April 2023 is varied to read:
16.Each party shall forthwith do all things and sign all documents necessary to draw down or further borrow sufficient funds on the mortgage over the property at B Street, Suburb C, New South Wales to pay the costs of the mother’s mental health assessment to be prepared pursuant to Order 9 and the updated single expert report to be prepared pursuant to Order 12 herein.
3.The respondent mother (“the mother”) is to do all things necessary to seek a grant of legal aid for the purposes of meeting the costs of the report that was ordered in Order 12 made 14 April 2023.
4.The mother is to do all things necessary to make enquiries into the Attorney General’s Disbursement Scheme for the purposes of meeting the costs of the report that was ordered in Order 12 made 14 April 2023.
5.In the event that the parties do not agree to the sale of the former matrimonial home at B Street, Suburb C New South Wales (“the Suburb C property”), unless they can reach agreement about the value of the Suburb C property, by no later than 30 June 2024 the parties shall agree to the appointment of a single joint expert for the purposes of valuing the same. The cost is to be borne by each party equally.
6.In the event that the parties do not…
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- Denton & Denton (No 2) [2024] FedCFamC1F 144
- Case
- [2024] FedCFamC1F 144
- Decision Date
CaseChat Overview and Summary
The court began by acknowledging the father's desire for more time with the child, including overnights, and the mother's opposition to overnight stays. Given the child's age and the father's request for more structured and regular time, the court decided to gradually increase the father's time, including overnights, to foster a stronger relationship. The court also emphasized the importance of the mother obtaining a mental health assessment to better understand her and the child's needs. However, recognising the mother's financial constraints, the court ordered her to make efforts to obtain legal aid or other means to cover the assessment costs.
In addition to parenting arrangements, the court addressed the financial aspects of the case, including the valuation of properties and the sale of assets. The court mandated the appointment of a joint expert to value the former matrimonial home and the Denton Self-Managed Super Fund if the parties could not agree on their values. The court further provided detailed trial directions to ensure an efficient and effective final hearing, including deadlines for filing documents, serving evidence, and preparing case outlines.
The court's final orders included specific parenting arrangements that gradually increased the father's time with the child, including overnight stays, while also addressing other parenting matters such as changeovers, preschool attendance, and extracurricular activities. The court also ordered the mother to seek a mental health assessment and provided directives for financial arrangements and trial preparations. This decision reflects the court's commitment to making orders that prioritise the child's best interests while considering the parents' circumstances and wishes.
Orders
Orders of the court
SYC 1695 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR DENTON
Applicant
AND:
MS DENTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1. The matter is listed for mention on 9 July 2024 at 9am for the purposes of reviewing the progress of the implementation of the orders made today and to ensure the matter is ready for final hearing.
2. Order 16 made on 14 April 2023 is varied to read:
16. Each party shall forthwith do all things and sign all documents necessary to draw down or further borrow sufficient funds on the mortgage over the property at B Street, Suburb C, New South Wales to pay the costs of the mother’s mental health assessment to be prepared pursuant to Order 9 and the updated single expert report to be prepared pursuant to Order 12 herein.
3. The respondent mother (“the mother”) is to do all things necessary to seek a grant of legal aid for the purposes of meeting the costs of the report that was ordered in Order 12 made 14 April 2023.
4. The mother is to do all things necessary to make enquiries into the Attorney General’s Disbursement Scheme for the purposes of meeting the costs of the report that was ordered in Order 12 made 14 April 2023.
5. In the event that the parties do not agree to the sale of the former matrimonial home at B Street, Suburb C New South Wales (“the Suburb C property”), unless they can reach agreement about the value of the Suburb C property, by no later than 30 June 2024 the parties shall agree to the appointment of a single joint expert for the purposes of valuing the same. The cost is to be borne by each party equally.
6. In the event that the parties do not agree to the sale of the assets of the Denton Self‑Managed Super Fund (“the Super Fund”), unless they can reach agreement about the value of the Super Fund, by no later than 30 June 2024 the parties shall agree to the appointment of a single joint expert for the purposes of valuing the same. The cost is to be borne by each party equally.
Trial directions
7. By no later than 4pm on 2 September 2024, each party is to file and serve any amended Application or Response on which they seek to rely.
8. By no later than 4pm on 9 September 2024, each party is to file and serve one consolidated affidavit in support of the orders sought by them, together with any other witnesses’ affidavits.
9. By no later than 4pm on 9 September 2024, each party is to file and serve an updated financial statement.
10. By no later than 4pm on 16 September 2024, each party is to serve exhibits to affidavits and tender bundles of all documents that might be tendered or relied upon in cross‑examination on each other, and provide an electronic copy of the same to my Associate.
11. In respect to exhibits to affidavits and tender bundles, only documents which are successfully tendered during the hearing shall be in evidence.
12. By no later than 4pm on 23 September 2024, the parties are to have served objections to evidence on each other.
13. By no later than 4pm on 27 September 2024, the parties shall have conferred, settled and forwarded to my Associate a document in electronic form setting out:
(a) Those parts of the evidence which shall not be read; and
(b) Those parts of the evidence to which an objection is maintained and the reason for that objection.
14. By no later than 4pm on 23 September 2024 the parties shall have conferred, settled and forwarded to my Associate in electronic form:
(a) A joint balance sheet; and
(b) A joint trial plan which allows for the trial to be completed within five days.
15. By no later than 4pm on 23 September 2024, the mother and the applicant father (“the father”) are to file and serve a Case Outline document, setting out:
(a) a list of documents to be read in their case;
(b) a precise Minute of Orders Sought; and
(c) a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.
16. By no later than 4pm on 26 September 2024, the Independent Children’s Lawyer is to file and serve a Case Outline document, setting out:
(a) a list of documents to be read in their case;
(b) a precise Minute of Orders Sought; and
(c) a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.
17. No further subpoenas be issued by either party without leave of the Court. Subject to any objection being raised by any person to whom a subpoena has been issued, photocopy access be granted to the parties’ legal representatives and the Independent Children’s Lawyer for the purposes of providing exhibits to affidavits and provisional tender bundles.
18. By no later than 4pm on 27 September 2024, each party is to file a notification as to costs pursuant to rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (including complying with rule 12.06(2)).
19. Leave is granted to the parties to apply to relist the proceedings on seven days’ notice to deal with any issues arising out of the implementation of the orders made on today’s date, or anything that may jeopardise the hearing dates, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a) Forthwith notify all other parties of the intention to make the request and the reason for same;
(b) Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c) Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
20. The child, X, born 2019 (“the child”), spend time with the father as follows:
(a) For a period of 8 weeks from the date of these orders each Sunday from 10.00 am until 4.00 pm, with the first such period to commence on 10 March 2024;
(b) On conclusion of the above period for a further period of 12 weeks each week from 4.30 pm on Friday until 4.30 pm on Saturday, with the first such period to commence on 30 April 2024;
(c) Thereafter, each alternate weekend from 4.30 pm on Friday until 4.30 pm on Sunday, with the first such period to commence on 23 July 2024;
(d) On Father’s Day from 10.00 am until 5.00 pm should such day not fall on the father’s weekend pursuant to these orders; and
(e) At such other dates and times and for such other periods as agreed to by the parties in writing.
21. In the event that Mother’s Day falls on a weekend when the child would spend time with the father pursuant to these orders, the father’s time with the child is to be suspended from 10.00 am on Mother’s Day for the remainder of the weekend NOTING THAT Mother’s Day in 2024 will not fall on a day when the child would spend time with the father pursuant to these orders.
22. Whenever possible, changeovers shall take place at the child’s day care/pre-school and should this not be possible at a public venue agreed to by the parties in writing and in the absence of such agreement at the McDonalds restaurant closest to the mid-point to the parents’ respective residences.
23. The parents may each be accompanied at changeovers by no more than one adult person.
24. The mother shall do all things necessary to ensure that the child continues to attend D Preschool noting that the child is presently attending such pre-school from 8.30 am until 4.30 pm on Monday to Friday inclusive.
25. The mother shall forthwith attend upon Mr E, clinical psychologist, for the purpose of a mental health assessment, and she shall provide a copy of his assessment report to the father or his legal representation (whichever is applicable) and to the Independent Children’s Lawyer.
26. The two single expert reports prepared by Ms F in these proceedings along with a copy of these orders be released to Mr E by the Independent Children’s Lawyer.
27. On a without admissions basis, the mother and the father shall be restrained from:
(a) Exposing the child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children, the mother, the father, or any other member of either parent’s household;
(b) Denigrating the other or members of the other parent’s family in the presence or hearing of the child and each party shall do all acts and things reasonably necessary to prevent any other person doing so.
(c) Discussing these proceedings or any issues arising out of these proceedings with the child or permitting any third party to do so.
(d) Making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent or referring in any way to the proceedings.
(e) Consuming any illicit substances during any period that the child is in their care and/or bringing the child into contact with any person that they know or suspect to be under the influence of illicit drugs or substances during the time that the child spends with the parties.
28. The parents shall each ensure that they shall take the child to any and all of her extracurricular activities should such activities fall during a period when the child would be living or spending time with such parent.
29. Both parents are authorised to communicate with the child’s pre-school/day care provider, health care/medical practitioners and extra-curricular activities organisers and obtain such information from those persons/organisations that parents are ordinarily permitted to obtain, at the requesting parent’s expense.
30. Both parents are authorised by these orders to attend any pre-school events or activities in respect to the child which parents normally attend.
31. In the event that they have not already done so the mother and the father shall forthwith enrol in and complete a parenting after separation programme such as offered by O Family Services, R Family Services or S Family Services.
32. The mother and the father shall continue to engage with their respective treating psychologist(s) and treating health professionals until such time that such psychologist(s) or health professionals considers it to no longer be necessary.
33. The Independent Children’s Lawyer shall be authorised by these orders to speak and communicate with the child’s pre-school and or speech pathologist.
34. A copy of these orders be provided by either parent to the child’s pre-school/day care provider, D Preschool.
THE COURT NOTES THAT:
A. Should the parties manage to further borrow funds in accordance with Order 16 made 14 April 2023, amended by the orders made today, such further borrowings are to be considered by the trial judge at the final hearing pursuant to s 79 of the Family Law Act 1975 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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