FAMILY LAW – CHILDREN - Presumption of equal shared parental responsibility- The best interests criteria - Weight given to teenage children’s expressed views – Meaning of “substantial and significant” parenting time discussed.
This was an application by the father for equal shared parental responsibility and parenting time orders. The mother proposed the retention of the status quo in line with the expressed wishes of the subject children, a boy R, aged 15 and a girl B, aged 10.
The Independent Children’s Lawyer and two court experts contended that any additional time with the father was contrary to the children’s best interests.
Held: The children needed to develop a more meaningful and stronger long-term relationship with the father and to have him more actively involved in their lives. This could only be achieved by increasing the time the children spend with him from minimal to substantial and significant. Any risk of harm arising from the extra time was worth taking for the children’s overall benefit.
Family Law – Property - Division of pool after marriage of 13 years duration – s 79(4) and s 75(2) considerations.
The main redistribution issue was whether the significance of the husband’s sizeable initial capital contribution was offset or diminished and to what extent by the wife’s overall s 79(4)(c) contribution to the date of trial and her likely future financial needs.
Held: 55/45 split of total property pool in favour of the husband.
C and C (2002) 211 CLR 238 Ahmad (1979) FLC 90-633 Re: T (Contact : Alienation : Permission to appeal) (2003) 1 FLR 531 ZN v YH and Child Representative (2002) FLC 93-101 Wotherspoon and Cooper (1980) FLC 91-029 K and Z (1997) FLC 92-783 H v W (1995) FLC 92-598 Re P(1992) 1 FLR 316
R and R: Children’s wishes (2000) FLC 93-000. Re G : Children’s schooling (2000) FLC 93-025
W and W (1980) FLC 90-872 Foster v Foster [2003] 2 FLR 299 Burgess v Burgess [1996] 2 FLR 34. Bremner and Bremner (1995) FLC 92-560. Lee Steere (1985) FLC 91-626 Zyk (1995) FLC 92-644 Pierce (1999) FLC 92-844
Rogers (1980) FLC 90-874
APPLICANT:
MR DYLAN
RESPONDENT:
MS DYLAN
INDEPENDENT CHILDREN’S LAWYER:
Legal Aid (Qld)
FILE NUMBER:
BRF
2433
of
2004
DATE DELIVERED:
21 August 2007
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
Dylan & Dylan [2007] FamCA 842
Case
[2007] FamCA 842
Decision Date
CaseChat Overview and Summary
In the matter of *Dylan & Dylan*, Carmody J of the Family Court of Australia considered applications concerning both children’s matters and property division. In the children’s proceedings, the father sought orders for equal shared parental responsibility and increased parenting time, while the mother sought to maintain the status quo, aligning with the expressed wishes of their children, a 15-year-old boy and a 10-year-old girl. The Independent Children’s Lawyer and two court experts opposed the father's application, asserting it would not be in the children's best interests.
The court was required to determine whether to grant equal shared parental responsibility and increased parenting time to the father, considering the children's best interests, the weight to be given to the teenage child's views, and the meaning of "substantial and significant" parenting time. In the property proceedings, the central issue was whether the husband's substantial initial capital contribution was offset or diminished by the wife's contributions to the marriage and her likely future financial needs.
Regarding the children's matters, Carmody J found that the children needed to develop a more meaningful and stronger long-term relationship with their father and to have him more actively involved in their lives. This necessitated an increase in the time the children spent with him from minimal to substantial and significant, with the court deeming any potential risk of harm from this increased time to be a worthwhile risk for the children's overall benefit. In the property proceedings, after considering the relevant factors under sections 79(4) and 75(2) of the *Family Law Act 1975* (Cth), the court ordered a 55/45 split of the total property pool in favour of the husband.