Catchwords: FAMILY LAW – Parenting – family violence – young child subjected to assault – respondent mother affected by mental health illness – child removed by DHHS from respondent’s residence – whether applicant should have sole parental responsibility – spend time arrangements – expert evidence indicates caution required if altering spend time from supervised time to unsupervised time – no evidence that respondent has taken steps to address mental illness – appropriate final orders where long term supervision under consideration – where family report writer, ICL and applicant support regime whereby applicant may exercise discretion whether to relax supervision – whether conditions upon which relaxation of supervision available – whether power to require that respondent undergo psychological and psychiatric treatment as recommended by independent experts and supported by family report writer, ICL, applicant and respondent – whether costs of such treatment should be paid from net proceeds of sale of property – where such treatment is in best interests of the child.
FAMILY LAW – Property – jurisdiction to make orders in de facto relationship – modest estate – where respondent’s future needs informed by mental health – parties agreed an adjustment of property interests is just and equitable – whether superannuation splitting order should be made.
FAMILY LAW – Maintenance – where respondent living in near itinerant circumstances – where minimal familial or other support – where applicant retrenched from employment and depleting retrenchment payment while completing course of tertiary course of study – need and capacity to pay – periodic spousal maintenance ordered for 12 months to be extinguished upon depletion of net proceeds of sale held on trust – superannuation splitting order made.
[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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AGLC
DUBICKI & RIMMER [2019] FCCA 1168
Case
[2019] FCCA 1168
Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, Judge A Kelly considered parenting, property, and spousal maintenance disputes between the applicant and respondent mother. The parenting proceedings concerned a young child who had been subjected to assault and subsequently removed from the respondent's care by the Department of Health and Human Services due to the respondent's mental health illness. The applicant sought sole parental responsibility, while the court also had to determine appropriate spend time arrangements. In relation to property, the parties were in a de facto relationship with a modest estate, and the respondent's future needs were influenced by her mental health. The parties had agreed that an adjustment of property interests was just and equitable, and the court was asked to consider a superannuation splitting order. Finally, the spousal maintenance claim arose in circumstances where the respondent was living in near itinerant conditions with minimal support, and the applicant had been retrenched and was depleting his retrenchment payment while undertaking tertiary studies.
The court was required to determine whether the applicant should have sole parental responsibility for the child, and what final parenting orders, including spend time arrangements, were appropriate, particularly in light of expert evidence recommending caution regarding any alteration from supervised to unsupervised time. The court also had to consider whether it had jurisdiction to make orders in relation to the property of the de facto relationship and, if so, what adjustment was just and equitable, including the possibility of a superannuation splitting order. Furthermore, the court needed to assess the need and capacity of each party to pay spousal maintenance, considering the respondent's circumstances and the applicant's employment situation and studies.
In its reasoning, the court noted that expert evidence indicated caution was required if altering spend time arrangements from supervised to unsupervised time, and there was no evidence that the respondent had taken steps to address her mental illness. The court considered that long-term supervision was under consideration and that a regime whereby the applicant might exercise discretion to relax supervision was supported by the family report writer, the Independent Children's Lawyer, the applicant, and the respondent. The court also considered whether it had the power to require the respondent to undergo psychological and psychiatric treatment as recommended by experts and supported by various parties, and whether the costs of such treatment should be paid from the net proceeds of the sale of property, concluding that such treatment was in the best interests of the child. Regarding property and maintenance, the court acknowledged the parties' agreement on an adjustment of property interests and the respondent's future needs being informed by her mental health, and it considered the applicant's retrenchment and studies in assessing spousal maintenance.
The proceeding was adjourned for further hearing for the making of final orders. Pending this, the applicant was restrained from executing or giving a binding death benefit nomination that would render any part of his superannuation a non-splittable payment. The applicant was also directed to serve a copy of the proposed order on the trustee of his superannuation fund to accord procedural fairness and to file an affidavit providing evidence of the trustee's response. The content of the proposed order was to be kept confidential.
Orders
Orders of the court
1.
The proceeding is adjourned for further hearing at 10.00am on 2 July 2019 for the making of final orders in accordance with these reasons for judgment.
2.
Pending the making of final orders in accordance with paragraph (1) of this Order, or further order, the applicant be and is hereby restrained whether by himself, his servants, his agents or howsoever otherwise from executing, and/or giving to the trustee of the Employer Super Plan (Fund) a binding death benefit nomination in favour of any person, or doing any other act or thing, which would render any part of, or payment from, his superannuation interest in that Fund a non-splittable payment within the meaning of regs 12-13 of the Family Law (Superannuation) Regulations 2001 (Cth).
3.
Direct that that the applicant forthwith cause to be served on the trustee of the Fund, a copy of the proposed order attached hereto and marked CONFIDENTIAL Annexure A in order that procedural fairness may be accorded to that trustee concerning orders respecting the interests of the applicant (member number …) in that Fund.
4.
Direct that by 4.00pm on 25 June 2019, the applicant file and serve an affidavit providing evidence of any response by the trustee whether it consents (or does not object) to orders being made in terms of the proposed order attached hereto and marked CONFIDENTIAL Annexure A.
5.
Order that the content of CONFIDENTIAL Annexure A be kept confidential and not be disclosed by any person other than to the Registrar, the parties, their lawyers and the trustee of the Employer Super Plan.