FINLEY & PRESCOTT - [2019] FCCA 82

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINLEY & PRESCOTT

[2019] FCCA 82

Catchwords:
FAMILY LAW – Parenting – Twins aged 8 – where the children have spent no time with the father for over two years – where the mother sought orders that the children spend no time and have no communication with the father in the future – mother alleging significant family violence and that the father has mental health issues and poses an unacceptable risk of harm to the children – father seeking time on one weekend each month and during school holidays – father alleging that concerns about his behaviour are overblown and that the mother, her solicitor and corrupt police had conspired to blacken his name – where there are a plethora of reasons to be concerned about the father – where the children would be at unacceptable risk of harm in the father’s care and where the mother would be beside herself with worry if they spent unsupervised time with the father – order made for no time and no communication.

PROPERTY – Dispute about how a small amount in trust from the sale of the former matrimonial home should be divided – where the parties have debts which exceed the amount held in trust – mother to receive the money in trust.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 75, 79

Cases cited:

Mazorski & Albright (2008) 37FamLR 518
Stanford & Stanford (2012) FLC 93-495

Applicant:

MS FINLEY

Respondent:

MR PRESCOTT

File Number:

CRC 327 of 2015

Judgment of:

Judge Terry

Hearing dates:

11, 12 & 13 July 2017, 16 August 2017

and 22 February 2018

Date of Last Submission:

22 February 2018

Delivered at:

Newcastle

Delivered on:

21 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr Curtis

Solicitors for the Applicant:

Slater & Gordon

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr O’Brien

Solicitors for the Independent Children’s Lawyer:

Burridge Harris & Flynn

ORDERS

Parenting

The mother shall have sole parental responsibility for the children [X] born …2010 and [Y] born …2010 (“the children”).
The children shall live with the mother.
The father shall spend no time with and have no communication with the children.
Pursuant to s.68B of the Family Law Act 1975 an injunction is granted restraining the father from:
(a)Entering, remaining in or removing the children from a place of residence, employment or education.
(b)Approaching or contacting the children and mother by any means whatsoever.
(c)Entering or remaining in a place of residence, employment or education of the mother.
The mother may travel internationally with the children or permit the children to travel internationally and may apply for a passport for the children notwithstanding the consent of the father having not been obtained.

Property

The mother is declared the owner to the exclusion of the father of the money held in trust from the sale of Property A and, if required, the father shall sign all documents and do all acts and things to authorise the firm…

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 FINLEY & PRESCOTT

Details

AGLC: FINLEY & PRESCOTT [2019] FCCA 82
Case: [2019] FCCA 82
Decision Date: 21 January 2019

CaseChat Overview and Summary

In the matter of Finley & Prescott, Judge Terry of the Federal Circuit Court of Australia considered parenting and property disputes between the parties. The parenting orders addressed sole parental responsibility, living arrangements, and communication between the father and the children, [X] and [Y]. The property orders dealt with the division of assets, including funds held in trust from the sale of Property A, the winding up of a partnership known as Company M, and the allocation of personal property and liabilities.

The court was required to determine the best interests of the children in relation to parenting arrangements, considering factors such as the children's views, their relationships with each parent and other significant persons, and each parent's fulfillment of their parental obligations. Specifically, the court had to assess the weight to be given to the children's limited expressed views, the nature of their bonds with both parents, and the extent to which each parent had participated in major long-term decisions and spent time with the children. In relation to property, the court's task was to declare ownership of specific assets and liabilities and to facilitate the division of the parties' financial interests.

Judge Terry's reasoning focused on the paramountcy of the children's welfare. While the children, aged six at the time of interviews, did not express clear views on future parenting arrangements, they related well to both parents, displaying more excitement with the father but a secure attachment with the mother. The court noted the father's significant efforts to maintain contact until supervised time was suspended and his subsequent application for increased contact, which was dismissed. The court also considered the mother's current relationship with Mr. K, with whom the children related reasonably well. The court applied principles from the *Family Law Act 1975*, including considerations for children's views and the extent of parental involvement, to make its determinations.

The court ordered that the mother have sole parental responsibility for the children, that the children live with the mother, and that the father have no time or communication with the children. An injunction was granted restraining the father from various forms of contact and proximity to the mother and children. The mother was permitted to travel internationally with the children without the father's consent. In property matters, the mother was declared the owner of funds from Property A, and the parties were ordered to wind up Company M. Each party was to retain possession of other assets and liabilities, with provisions for indemnification. The court also appointed a Registrar to execute documents if a party failed to do so.

Orders

Orders of the court

Parenting

The mother shall have sole parental responsibility for the children [X] born …2010 and [Y] born …2010 (“the children”).

The children shall live with the mother.

The father shall spend no time with and have no communication with the children.

Pursuant to s.68B of the Family Law Act 1975 an injunction is granted restraining the father from:

(a) Entering, remaining in or removing the children from a place of residence, employment or education.

(b) Approaching or contacting the children and mother by any means whatsoever.

The mother may travel internationally with the children or permit the children to travel internationally and may apply for a passport for the children notwithstanding the consent of the father having not been obtained.

Property

The mother is declared the owner to the exclusion of the father of the money held in trust from the sale of Property A and, if required, the father shall sign all documents and do all acts and things to authorise the firm in whose trust account the money is currently held to pay the money to the mother.

The parties shall forthwith sign all documents necessary to wind up the partnership known as Company M including the lodgement of all final taxation returns.

Except as otherwise provided in these Orders as between the parties, each party is declared to have no further interest in the items of personal property, any other assets or financial resources in the possession of the other.

Except as otherwise provided in these Orders any liability attaching to an asset received by a party shall become the sole responsibility of that party and that party shall indemnify the other against any further liability in respect thereof.

10.

In the event that either party refuses or neglects or is unable to execute any instrument or document being an instrument or document the execution of which is provided for in these orders or is necessary to put into effect the provisions of these orders then at the request of the other party a Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute any such instrument or document in the name of the party refusing or neglecting or being unable to so execute the instrument or document.

Background

Background to the litigation

Full text does not contain this section.

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

The first additional consideration is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views. [Y] and [X] were 6 at the time of the report interviews in July 2016. Dr D spoke them individually and asked them to do tasks such as drawing their family and indicating who they would like to live in three houses and asked them what they would wish for if they had three wishes. Nothing emerged from that which suggested that the children had any view about future parenting arrangements. I must consider the nature of the relationship of the children with each of their parents and other persons (including any grandparent or other relative of the children). The children related well to both of their parents at the report interviews. They were much more excited and active when with the father but they were warm with the mother and Dr D expressed the view that they had a secure attachment to her. She provided reasons for that opinion and I accept it. At the time of the report interviews the mother was in a relationship with Mr K and that was still the case in July 2017.[4] The children related reasonably well to Mr K at the interviews and their only complaint about him was that he yelled. It was not suggested that anything adverse was known about Mr K.[4] Mother’s financial statement part E The children spent an hour with the father and were disappointed when the time was over. Dr D expressed some concern about the father’s interaction with the children which I will refer to in the parenting capacity section of this judgment but the children clearly had a strong bond with their father. They have not seen the father for over two years and at present they have no relationship with him. I must consider the extent to which each of the children's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children. The father made a considerable effort to see the children until his supervised time was suspended, flying up from Melbourne each fortnight to do so. However, he ceased spending time with them in June 2016 after Interrelate indicated that they would not continue supervision. He filed an application in a case in October 2016 seeking among things that by way of compensation for the fact that the mother’s solicitor misled the court in December 2015 the children be immediately placed in his care or alternatively that they commence spending unsupervised time with him but that application was dismissed and the hearing date of February 2017 affirmed.[5] [5] I checked the court file to see if such an application had been made as I was not the docket judge at the time. I must consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children.