Engleby & Engleby - [2023] FedCFamC2F 540

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Engleby & Engleby [2023] FedCFamC2F 540

File number(s): PAC 3703 of 2020

Judgment of: JUDGE STREET

Date of judgment: 23 June 2023

Catchwords: FAMILY LAW – PARENTING – PROPERTY – time for child with father in accordance with wishes – child lives with mother – mother sole parental responsibility

Legislation:
Evidence Act 1995 (Cth): s 140

Federal Circuit and Family Court of Australia Act 2021 (Cth): s 190

Family Law Act 1975 (Cth): Part VII, s 4, s 4AB, s 41(1)(b), s 43, s 60B, s60B(1), s 60CA, s 60CC, s 60CG, s 61DA, s, 65D, s 65DAA, s 69ZM, s75, s 79(2) s 102NA

Cases cited:
A v A (1998) FLC 92-800

Cotton & Cotton (1983) FLC 91-330

Champness & Hanson [2009] FamCAFC 96

Deiter & Deiter [2011] FamCAFC 82

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Fitzwater & Fitzwater (2019) 60 Fam LR 212

G & C [2006] FamCA 994

Goode v Goode [2006] FamCA1346

Isles & Nelissen (2022) FedCFamC1A 97 FLC 94-092

Johnson & Page (2007) FLC 93-344

Jurchenko & Foster (2014) FLC 93-598

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69

Marburon & Waldlow [2013] FamCAFC 191

Masson v Parsons (2019) 266 CLR 554

McCall & Clark (2009) FLC 93-405

Moose & Moose [2008] FamCAFC 108

N v S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

Slater & Light [2011] FamCAFC 1

Stott & Holgar [2017] FamCAFC 152

Division: Division 2 Family Law

Number of paragraphs: 170

Date of hearing: 24 March 2023

Place: Sydney

Applicant In person

Counsel for the Respondent: Ms D. Hawkins

Solicitor for the Respondent: Diaz & Diaz

Counsel for the Independent Children’s Lawyer: Dr C. McConaghy

Independent Children’s Lawyer Christina Lam & Associates
ORDERS

PAC 3702 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ENGLEBY

Applicant

AND:
MS ENGLEBY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE STREET

DATE OF ORDER:

24 March 2023

THE COURT ORDERS THAT:
1.The applicant’s request for further adjournment is refused.
2.Written reasons for the refusal are reserved.

PARENTING
3.All extant parenting orders be discharged.
4.The mother have sole parental responsibility for X born 2011 ("the child").
5.The child live with the mother.
6.The child shall spend time with and communicate with the father in accordance with her wishes.
7.The father be at liberty to send cards, letters and presents to the child provided that they are age and child appropriate and that the mother will ensure that the child is provided with all letters and cards and/or presents sent to the child from time to time by the father.
8.The mother be at liberty to vet all cards, letters and/or presents sent by the father to the child to ensure that they are child and age appropriate.
9.The father be restrained from denigrating the mother or…

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: Engleby & Engleby [2023] FedCFamC2F 540
Case: [2023] FedCFamC2F 540
Decision Date

CaseChat Overview and Summary

The case of Engleby & Engleby involved the determination of parenting and property orders by the Federal Circuit and Family Court of Australia. The matter concerned a child born in 2011, who had been living with the mother since the separation of the parents. The father sought various parenting orders, including sole or shared parental responsibility, and sought an adjustment in the property settlement. The mother opposed these applications and sought sole parental responsibility and an adjustment of the property settlement in her favour. The court was required to determine the best interests of the child in making the parenting orders and to make a just and equitable property settlement.

The court found that the child, now 12 years old, did not wish to spend time with her father due to past negative experiences and expressed a fear of suicide if required to do so. The court also found that the father had a history of mental health issues and family violence, and had failed to take responsibility for his actions or adequately address his mental health concerns. The court concluded that sole parental responsibility should be awarded to the mother and that the child should spend time with the father only in accordance with her wishes, subject to certain restraints. The court also made orders in relation to property, including an order for the father to vacate the matrimonial home, payment of outstanding child support, and a splitting order of superannuation and property in favour of the mother. The court considered the child's views, the history of family violence, the mental health of the father, and the contributions of each party to the relationship and to the property pool in making its orders.

Orders