Dunn & Dunn - [2021] FamCA 123

FAMILY COURT OF AUSTRALIA
Dunn & Dunn [2021] FamCA 123

File number(s): ADC 5380 of 2020

Judgment of: BERMAN J

Date of judgment: 17 March 2021

Catchwords:
FAMILY LAW – CHILDREN – Best interests of child –With whom a child spends time with – Where the applicant seeks that the respondent’s time be reduced – Where the respondent seeks that his time with the children be extended – Where the applicant considers the children remain traumatised from their previous retention by the respondent – Where the respondent considers any distress is due to the applicant removing them from the former matrimonial home – Where there are allegations of family violence – Where a family assessment is yet to be conducted – Where a cautious approach is to continue the current interim arrangements.

FAMILY LAW – INJUNCTIONS – Personal protection – Preservation of property – Where the parties agree to a range of mutual injunctions for their personal protection – Where the applicant seeks that the respondent be restrained from dealing with the interest of the parties in certain properties – Where a third party holds mortgages over some of the properties – Orders.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the applicant seeks the respondent pay her spousal maintenance – Where the respondent is currently paying the applicant an amount per week but the applicant seeks a higher amount – Where the applicant was terminated from her employment due to COVID-19 and is in receipt of government benefits – Where the respondent considers the gateway requirement is satisfied and is prepared to continue the current arrangement – Where a reasonable compromise of the applicant’s total expenditure would still be greater than the current amount being received – Orders.

FAMILY LAW –PROPERTY – Interim – Litigation funding –Where the applicant seeks a lump sum payment for current and future legal fees – Where no agreed balance sheet has been provided by the parties – Where no attempt has been made to consider the extent of the anticipated legal fees – Where more evidence is required for the Court to consider making an order – Application adjourned.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), s 117

Family Law Rules 2004 (Cth) Pt 19.5

Cases cited:
Brown & Brown (2007) FLC 93-316

Chester v Chester (1995) FLC 92-612

Deiter & Deiter [2011] FamCAFC 82

Hall & Hall (2016) 257 CLR 490

Marvel & Marvel (2010) 43 Fam LR 348

Number of paragraphs: 104

Date of hearing: 19 February 2021

Place: Adelaide

Counsel for the Applicant: Ms Lewis

Solicitor for the Applicant: Resolve Divorce Lawyers

Counsel for the Respondent: Mr Jordan

Solicitor for the Respondent: Jordan & Fowler Family Lawyers

ORDERS

ADC 5380 of 2020

BETWEEN:
MS DUNN
Applicant

AND:
MR DUNN
Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

17 MARCH 2021

THE COURT ORDERS:
1.That paragraphs 1 to 5 inclusive of the applicant’s interim orders sought on 5 November…

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.

Continue reading Dunn & Dunn

Details

AGLC: Dunn & Dunn [2021] FamCA 123
Case: [2021] FamCA 123
Decision Date: 17 March 2021

CaseChat Overview and Summary

In the matter of *Dunn & Dunn*, Ms Dunn (the applicant) and Mr Dunn (the respondent) brought their dispute before Berman J. The proceedings concerned interim applications relating to parenting arrangements, spousal maintenance, property, and litigation funding. The core of the parenting dispute involved the applicant seeking to reduce the respondent's time with the children, citing their alleged trauma from previous retention by the respondent, while the respondent contended any distress stemmed from the applicant removing the children from the former matrimonial home. Allegations of family violence were also raised, and a family assessment was pending.

The court was required to determine several legal issues. These included whether to continue the current interim parenting arrangements, the appropriateness of granting mutual personal protection injunctions, whether to restrain the respondent from dealing with certain property interests, the quantum of interim spousal maintenance payable to the applicant, and whether to order litigation funding for the applicant.

Berman J applied the paramount consideration of the best interests of the children in relation to parenting. The court adopted a cautious approach, electing to continue the existing interim arrangements given the pending family assessment and the conflicting accounts of the children's well-being and the parties' conduct. Regarding the financial matters, the court granted extensive mutual personal protection injunctions to prevent further conflict between the parties, particularly at child handovers. The respondent was also restrained from dealing with specific property assets. The court increased interim spousal maintenance to $1,500 per week, finding that a reasonable compromise of the applicant's expenditure exceeded her current receipts, despite her unemployment due to COVID-19. The application for litigation funding was adjourned due to insufficient evidence regarding the anticipated legal fees and the absence of an agreed balance sheet.

The court made orders reflecting these determinations. The applicant's initial interim orders were dismissed. Mutual injunctions were granted, restricting communication between the parties, prohibiting denigration of the other parent in front of the children, and preventing harassment or attendance within 100 meters of each other's residences. The respondent was restrained from dealing with his interests in three specified properties. Interim spousal maintenance was set at $1,500 per week. The litigation funding application was adjourned, and parties were ordered to file and serve a document detailing their assets and liabilities within 21 days.

Orders

Orders of the court

ADC 5380 of 2020

BETWEEN:

MS DUNN

Applicant

AND:

MR DUNN

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

17 MARCH 2021

THE COURT ORDERS:

1. That paragraphs 1 to 5 inclusive of the applicant’s interim orders sought on 5 November 2020 be dismissed.

2. That the parties be restrained and an injunction granted restraining each of them from:-

(a) Communicating with the other party, other than by text message with such communications to be limited to five (5) communications per day;

(b) Texting each other on any topic other than matters relating to the collection or drop off of the children or matters relating to their care and welfare;

(d) Denigrating the other in front of the children;

(e) Asking questions of the children that may go to the conduct and activity of each of the parties;

(f) Assaulting, molesting or harassing each other at handovers (or at any other time);

(g) Attending at or within 100 meters of each other’s residence.

3. That the respondent be restrained and an injunction be granted restraining him from:-

(a) Transferring, assigning, mortgaging, encumbering or in any way dealing with the respondent’s interests in the following assets:-

(i) B Street, D Town;

(ii) F Street, G Town; and

(iii) H Street, Suburb J.

4. That by way of interim spousal maintenance the respondent pay to the applicant the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500) per week into the applicant’s nominated bank account with such payments to be made on the Friday of each week.

5. That the applicant’s application for litigation funding be listed for hearing on a date to be fixed in consultation with the solicitors for the parties.

6. That within twenty one (21) days the parties file and serve a document setting out the assets and liabilities of the parties which identifies areas of agreement and disagreement.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The respondent opposes the balance of the interim financial orders as sought by the applicant save that the parties are agreed that orders can be made in terms of paragraph 6 of the applicant’s interim orders provided that the injunctive relief applies to both parties.BACKGROUND The parties commenced cohabitation in 2013 and were married in 2013. They separated in December 2019 with the applicant leaving the former matrimonial home on 3 February 2020. At the date of the issuing of proceedings the applicant was unemployed and in receipt of a government benefit or allowance supplemented by a further payment of the respondent in the sum of $1,000 per week. The applicant had been previously employed, however, with the advent of COVID-19 she was made redundant. The respondent is a professional of longstanding. He is the proprietor of his own business trading under the name of M Pty Ltd. It is uncontroversial that at present the applicant relies on the respondent for financial support. Following separation the parties attempted to negotiate their differences in respect of the parenting arrangements for the children by attending mediation. The parties are not agreed as to the history of care for the children. The respondent considers that the current parenting arrangements were as a result of the unilateral decision of the applicant and in circumstances where he was concerned he might be prevented from seeing the children at all, he agreed. The applicant denies the respondent’s assertion and says that she agreed to the arrangements against her better judgement. Moreover, the parties are not agreed as to how well the children are coping with the current arrangements. The respondent considers that whilst he remained in fulltime work, he nonetheless spent as much time as was possible with the children. The applicant does not agree and refers to her concern that the respondent was interested in X but less so with Y. The applicant remains concerned that the respondent is not able to compartmentalise the conflict with the applicant and instead has involved the children in repeated questioning as to the activities of the applicant. On 10 November 2020 the applicant sought an undertaking from the respondent that he would abide by the terms of the agreement reached at mediation on 10 September 2020. The undertaking was signed and whilst there is disagreement as to the parenting arrangements at the time, the respondent complains that the applicant was not committed to the mediation outcome and that his time with the children was significantly restricted. The children came into the care of the respondent on 18 December 2020. The agreement was that the children would be returned to the applicant’s care on 20 December 2020. The applicant sought to establish a time for the children’s return, however, the respondent sought to negotiate a different return time and date. The respondent took the children to the home of his mother and step-father. At around 9.00 pm the applicant attended at the respondent’s parent’s home and demanded that the respondent deliver the children up to her.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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File number(s):	ADC 5380 of 2020
Judgment of:	BERMAN J
Date of judgment:	17 March 2021
Catchwords:	FAMILY LAW – CHILDREN – Best interests of child –With whom a child spends time with – Where the applicant seeks that the respondent’s time be reduced – Where the respondent seeks that his time with the children be extended – Where the applicant considers the children remain traumatised from their previous retention by the respondent – Where the respondent considers any distress is due to the applicant removing them from the former matrimonial home – Where there are allegations of family violence – Where a family assessment is yet to be conducted – Where a cautious approach is to continue the current interim arrangements. FAMILY LAW – INJUNCTIONS – Personal protection – Preservation of property – Where the parties agree to a range of mutual injunctions for their personal protection – Where the applicant seeks that the respondent be restrained from dealing with the interest of the parties in certain properties – Where a third party holds mortgages over some of the properties – Orders. FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the applicant seeks the respondent pay her spousal maintenance – Where the respondent is currently paying the applicant an amount per week but the applicant seeks a higher amount – Where the applicant was terminated from her employment due to COVID-19 and is in receipt of government benefits – Where the respondent considers the gateway requirement is satisfied and is prepared to continue the current arrangement – Where a reasonable compromise of the applicant’s total expenditure would still be greater than the current amount being received – Orders. FAMILY LAW –PROPERTY – Interim – Litigation funding –Where the applicant seeks a lump sum payment for current and future legal fees – Where no agreed balance sheet has been provided by the parties – Where no attempt has been made to consider the extent of the anticipated legal fees – Where more evidence is required for the Court to consider making an order – Application adjourned.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), s 117 Family Law Rules 2004 (Cth) Pt 19.5
Cases cited:	Brown & Brown (2007) FLC 93-316 Chester v Chester (1995) FLC 92-612 Deiter & Deiter [2011] FamCAFC 82 Hall & Hall (2016) 257 CLR 490 Marvel & Marvel (2010) 43 Fam LR 348
Number of paragraphs:	104
Date of hearing:	19 February 2021
Place:	Adelaide
Counsel for the Applicant:		Ms Lewis
Solicitor for the Applicant:		Resolve Divorce Lawyers
Counsel for the Respondent:		Mr Jordan
Solicitor for the Respondent:		Jordan & Fowler Family Lawyers

ADC 5380 of 2020
BETWEEN:	MS DUNN Applicant
AND:	MR DUNN Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	17 MARCH 2021