DORRACOTT & DORRACOTT - [2020] FamCA 23

FAMILY COURT OF AUSTRALIA

DORRACOTT & DORRACOTT

[2020] FamCA 23

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – wife seeking $27,000 per month – husband by consent orders assuming financial responsibility for mortgages and larger liabilities – amount sought by wife excessive – application refused.

FAMILY LAW – PROPERTY – Sole Use And Occupation – wife’s application in relation to a holiday home refused – husband’s application for one weekend per month granted.

FAMILY LAW – NON-REPORTABLE THERAPY – application granted.

Family Law Act 1975 (Cth) ss 72(1), 75(2), 77, 114

Astbury v Astbury (1978) 4 Fam LR 395
Belcher & Gardener [2019] FamCA 205
Deiter v Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Hall v Hall (2016) 257 CLR 490
Hall v Hall [2015] FamCAFC 154
In the Marriage of Mitchell (1995) 19 Fam LR 44
Maroney & Maroney [2009] FamCAFC 45
Marvel v Marvel (2010) 43 Fam LR 348
Pollard & Nordberg [2019] FamCA 365
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Dorracott

RESPONDENT:

Ms Dorracott

FILE NUMBER:

MLC

2711

2019

DATE DELIVERED:

23 January 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Honourable Justice Wilson

HEARING DATE:

14 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Dickson of One of Her Majesty’s Counsel

SOLICITOR FOR THE APPLICANT:

Kenna Teasdale Lawyers

COUNSEL FOR THE RESPONDENT:

Ms R Wheeler

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

The wife’s application for interim spousal maintenance in paragraph 12.2 of her application in a case dated 13 December 2019 is dismissed.
The wife’s applications for child support in paragraph 12 of her application in a case filed 13 December 2019 are dismissed.
The parties and the children X born … 2005 and Y born … 2007 (“the children”) attend non-reportable family therapy with such suitably qualified practitioner as is nominated by the wife, such therapy to take place no less than once each month and commencing within fourteen (14) days of the date of these orders.
The wife’s application for sole use and occupation of B Street, C Town in paragraph 6 of her application in a case dated 13 December 2019 is dismissed.
Until the trial of this proceeding or further order the husband is permitted to access and use the property at B Street, C Town on the first weekend of each month from 5pm on Friday until 9am on Monday.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dorracott & Dorracott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY…

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: DORRACOTT & DORRACOTT [2020] FamCA 23
Case: [2020] FamCA 23
Decision Date: 23 January 2020

CaseChat Overview and Summary

In the matter of *Dorrincott & Dorrincott*, the wife sought interim spousal maintenance of $27,000 per month and sole use and occupation of a holiday home. The husband had, by consent orders, assumed responsibility for significant financial liabilities, including mortgages.

The court was required to determine whether the wife's application for interim spousal maintenance was justified given the existing financial arrangements and the amount sought. Additionally, the court had to consider the wife's application for exclusive use of the holiday home and the husband's competing interest in accessing it. The court also addressed applications for child support and the attendance of the parties and their children at therapy.

Justice Wilson dismissed the wife's application for interim spousal maintenance, finding the amount sought to be excessive in light of the husband's existing financial commitments. The wife's application for sole use and occupation of the holiday home was also dismissed. However, the court granted the husband permission to access and use the holiday home on the first weekend of each month until the trial or further order. The court ordered that the parties and their children attend non-reportable family therapy at least once a month, commencing within fourteen days. The wife's applications for child support were also dismissed.

Orders

Orders of the court

The wife’s application for interim spousal maintenance in paragraph 12.2 of her application in a case dated 13 December 2019 is dismissed.

The wife’s applications for child support in paragraph 12 of her application in a case filed 13 December 2019 are dismissed.

The parties and the children X born … 2005 and Y born … 2007 (“the children”) attend non-reportable family therapy with such suitably qualified practitioner as is nominated by the wife, such therapy to take place no less than once each month and commencing within fourteen (14) days of the date of these orders.

The wife’s application for sole use and occupation of B Street, C Town in paragraph 6 of her application in a case dated 13 December 2019 is dismissed.

Until the trial of this proceeding or further order the husband is permitted to access and use the property at B Street, C Town on the first weekend of each month from 5pm on Friday until 9am on Monday.

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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