ESSA & SALTER - [2021] FamCA 22

FAMILY COURT OF AUSTRALIA

ESSA & SALTER

[2021] FamCA 22

FAMILY LAW – CHILDREN – where there exists a high degree of parental conflict – where the child has been exposed to this conflict – where the child has a strong and attached relationship to each parent – where the father has exerted his power over the mother – where the mother has been inflexible with the father’s time with the child –where a finding is made contrary to the opinion of the Expert that the mother has the capacity to support a relationship with the child and the father if the child remains in her primary care – where the mother is the child’s primary attachment figure – where an equal time arrangement is not practical due to the distance between the parties’ homes – order for equal shared parental responsibility – order for the child to live with the mother and spend significant and substantial time with the father.

FAMILY LAW – PROPERTY – where the value of the father’s business has been diminished due to COVID-19 – where the mother made a negligible contribution to the father’s assets and income earning capacity – where the father supported the mother’s daughter from a previous relationship during cohabitation – where the mother is currently undertaking university study and has limited earning capacity – where the mother will continue to be the primary carer for the child – where it is appropriate to determine the mother’s entitlement by arriving at a monetary amount – order for father to pay the mother $350,000 by way of property adjustment – order for the father to pay the mother $400 per week by way of spousal maintenance for two and a half years or a lump sum amount of $48,000 at his discretion.

Family Law Act 1975 (Cth) s 60CC, s90SE, s 90SF, s 90SM

Bevan & Bevan (2013) FLC 93-545
Goode & Goode (2006) FLC 93-286
Nada & Nettle (Costs) (2014) FLC 93-612.
Stanford v Stanford (2012) 87 ALJR 74
MacGregor v MacGregor (1996) FLC 92-710

APPLICANT:

Mr Essa

RESPONDENT:

Ms Salter

INDEPENDENT CHILDREN’S LAWYER:

Acorn Lawyers

FILE NUMBER:

SYC

1025

2017

DATE DELIVERED:

29 January 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

24, 25, 26, 27 February 2020, 7, 8, 9, 10 September 2020.

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Coleman SC

SOLICITOR FOR THE APPLICANT:

Somerville Legal

COUNSEL FOR THE RESPONDENT:

Mr Livingstone

SOLICITOR FOR THE RESPONDENT:

David H Cohen & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Alexander

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Acorn Lawyers

Orders

Parenting

That all previous parenting Orders be discharged.
That the parents have equal shared parental responsibility for the child B born … 2015 (“the child”) for all decisions related to long term issues involving the child including, but not limited to:
(a)The schooling and education of the child, noting that the parents have agreed, subject to the payment of tuition fees by the Father,…

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: ESSA & SALTER [2021] FamCA 22
Case: [2021] FamCA 22
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Essa (the applicant father) and Ms Salter (the respondent mother) brought proceedings concerning their child, B. The dispute involved complex parenting arrangements and property adjustment. The court was required to determine the best interests of the child, considering the high level of parental conflict, the child's exposure to this conflict, and the strong attachments the child had to both parents. Additionally, the court had to address the division of property, including the impact of COVID-19 on the father's business and the mother's limited financial contributions and earning capacity.

The court was tasked with making orders regarding the child's living arrangements and time spent with each parent, balancing the child's primary attachment to the mother with the father's desire for significant involvement. This involved considering the practicalities of distance between the parties' residences and the expert's opinion on the mother's capacity to support a relationship with the father. In relation to property, the court needed to assess the contributions of each party, the future needs of the mother, and determine an appropriate monetary settlement and spousal maintenance.

In its reasoning, the court found that while an equal time arrangement was not practical due to distance, equal shared parental responsibility was appropriate for long-term decision-making concerning the child's education, health, and religion. The court ordered that the child live with the mother and spend significant and substantial time with the father, detailing specific arrangements for regular time, holidays, and special occasions. For property, the court acknowledged the mother's negligible contribution to the father's assets but recognised her limited earning capacity and role as primary carer. Consequently, the court ordered the father to pay the mother $350,000 by way of property adjustment and $400 per week in spousal maintenance for two and a half years, or a lump sum of $48,000 at his discretion. The orders also included provisions for communication between the parents, parental attendance at events, and a requirement for counselling.

Orders