Franklyn & Franklyn

Case [2021] FamCAFC 112

FAMILY COURT OF AUSTRALIA

Franklyn & Franklyn [2021] FamCAFC 112

Appeal from: Franklyn & Franklyn [2021] FCCA 588
Appeal number(s): EAA 37 of 2021
File number(s): DUC 63 of 2018
Judgment of: AUSTIN J
Date of judgment: 9 July 2021
Catchwords:

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the mother made an oral application to amend the grounds of appeal and to rely on a new Summary of Argument – Where it is necessary to ensure procedural fairness to both parties – Application refused.

FAMILY LAW – APPEAL – PARENTING – Where the mother appealed from orders requiring her to either re-establish the children’s residence within a reasonable proximity of the father or, in default, for the youngest child to live with the father – Assertions of failure to consider material considerations – Adequacy of reasons – Error of law – Where there is no merit in the parenting appeal – Appeal dismissed – Typographical error – Where the parties agree an error within the parenting orders is better amended by the primary judge under the slip rule.

FAMILY LAW – APPEAL  – PROPERTY – Where the mother appeals from orders dividing the parties’ assets 65 per cent and 35 per cent in favour of the father – Add backs – Where the primary judge erred by mischaracterising a loss as a premature distribution of a matrimonial asset because the sum was not received by the mother – Where the loss could only be characterised as an unjustifiable waste of an asset – Adequacy of reasons – Where the primary judge does not explain why the loss should be attributed to the mother as a notional asset – Mathematical error – Where the primary judge fell into error when computing the net value of the parties’ property and superannuation interests – Appeal allowed – Orders set aside – Remitter of property settlement proceedings for rehearing – Costs reserved for 28 days.

Legislation: Family Law Act 1975 (Cth) pts VII, VIII, ss 60CC, 61DA, 65DAA, 75(2), 79(4), 94AAA
Cases cited:

A & A (1998) 92-800; [1998] FamCA 25

Agius & Agius (2010) FLC 93-442; [2021] FamCAFC 143

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33

Cubbin & Cutler [2018] FamCAFC 84

Fitzmaurice & Woolridge (2020) FLC 93-951; [2020] FamCAFC 64

Franklyn & Franklyn [2019] FamCAFC 256

Gilles & Irby (2016) FLC 93-687; [2016] FamCAFC 13

Goudarzi & Bagheri (No.2) [2017] FamCAFC 190

Hakimi & Nasser (No.2) [2021] FamCAFC 88

House v The King (1936) 55 CLR 499; [1936] HCA 40

Marcin & Marcin (2020) FLC 93-956; [2020] FamCAFC 85

Sedgley & Sedgley (1995) FLC 92-623; [1995] FamCA 154

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33

Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 195

Pates & Pates [2018] FamCAFC 171

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AGLC
Franklyn & Franklyn [2021] FamCAFC 112
Case
[2021] FamCAFC 112
Decision Date

CaseChat Overview and Summary

The case of Franklyn & Franklyn involved a mother appealing against parenting and property settlement orders made in the Federal Circuit Court of Australia. The mother challenged the parenting orders which required her to re-establish the children's residence within reasonable proximity of the father, or alternatively for the youngest child to live with the father. She also contested the property settlement orders which divided the parties' assets in favor of the father. The court was required to determine whether there were errors in the primary judge's consideration of material factors, adequacy of reasons, errors of law, or if there were any mathematical errors in the property settlement.

The court found that the primary judge did consider the mother's historical role as the primary carer, her efforts to ensure the youngest child spent time with the father, and the prospect of alternative orders. However, the court also found that the primary judge doubted the mother's reliability and found that she was attempting to alienate the children from the father. The court concluded that the youngest child needed to spend substantial and significant time with the father to counteract the mother's influence. As for the property settlement, the court found that the primary judge mischaracterised a loss as a premature distribution of a matrimonial asset and fell into error when computing the net value of the parties' property and superannuation interests. The court found that the appeal from the parenting orders failed, but the appeal from the property settlement order succeeded.

The court set aside the parenting orders and remitted the parties' applications for relief under Part VIII of the Family Law Act 1975 (Cth) to the Federal Circuit Court of Australia for re-hearing. The court also set aside the property settlement orders and found that the parties and the Independent Children's Lawyer agreed that the question of costs should be reserved. If no application for costs is made within 28 days, the reservation of leave to apply for costs will lapse and the effect will be no order for costs.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The appeal is allowed in part.

2. Orders 24 to 32 inclusive made by the Federal Circuit Court of Australia on 26 March 2021 are set aside.

3. The parties’ applications for relief under Part VIII of the Family Law Act 1975 (Cth) are remitted to the Federal Circuit Court of Australia for re-hearing.

4. Costs are reserved for 28 days.

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

For the reasons which follow, the appeal from the parenting orders fails but the appeal from the property settlement order succeeds.BACKGROUND The eldest child was born to the mother in 2008, but his father died in 2009. The eldest child is now 13 years old. The parties met online in July 2013 and began cohabitation by January 2014 at latest. The parties and the eldest child lived on the father’s farming property in central west NSW. The parties married in 2014, at about which time the eldest child’s surname was changed to match the father’s and he began referring to the father as “dad”. The youngest child was born in 2015. He is now six years old. The parties separated in late October 2017, upon which the mother and both children vacated the farm and moved to another township in central west NSW. The father initiated proceedings under both Pt VII and Pt VIII of the Act in February 2018. Interim orders were made in May 2018, with the parties’ consent, for both children to spend supervised time with the father. As it transpired, only the youngest child ever spent time with him. The parties’ separation tended to spoil the relationship between the eldest child and the father, as they have not spent any time together since November 2017. At some indistinct point between June 2019 and September 2019, the mother relocated with the children from central west NSW to south eastern Qld without warning the father. Then, in September 2019, more interim orders were made requiring the mother to relocate the children’s residence back to central west NSW, but she successfully appealed from those orders and the interim dispute was remitted for re-hearing (Franklyn & Franklyn [2019] FamCAFC 256). The interim parenting dispute was re-heard and fresh orders were made in May 2020 providing for the youngest child to spend unsupervised time with the father on not less than two weekends each month – one in Sydney and the other in south eastern Qld. No orders were made in respect of the eldest child. Those orders prevailed until the final trial in February 2021. At trial, the mother proposed that the children live with her in south eastern Qld and that the youngest child spend time with the father, in both Qld and NSW, during school holidays and on one weekend each month during school terms. She was willing to equally share parental responsibility for the youngest child, though she wanted sole parental responsibility for the eldest child and proposed that he only spend time with the father as and when he wished. The father proposed that the youngest child continue to live with the mother, but only if she chose to move back within 165 kilometres of his home in central west NSW. If she was unwilling to do so, he instead proposed that the youngest child live with him. Regardless of with whom the youngest child lived, the father wanted equal shared parental responsibility for him. The father raised no contest over the eldest child’s residence or parental responsibility, but did want an order compelling the eldest child to spend time with him. By and large, the Independent Children’s Lawyer (“the ICL”) proposed similar orders to the father. Their joint position enjoyed the support of the Family Consultant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is unnecessary to address these grounds. When other more specific errors have already been demonstrated, there is no need to resort to an inference of error.CONCLUSION The appeal from the parenting orders fails. The appeal from the property settlement orders succeeds. The parties’ dispute under Pt VIII of the Act must be remitted to the Federal Circuit Court of Australia for re-hearing, as the mother sought. The parties and the ICL agreed that the question of costs should be reserved. If no application for costs is made within 28 days, the reservation of leave to apply for costs will lapse and the effect will be no order for costs.

Ratio Decidendi

Legal Principle Established

The presumption of equal shared parental responsibility (s 61DA) did not apply in respect of the eldest child because the father is not his parent. The primary judge ordered that the mother have sole parental responsibility for him, which order did not engage s 65DAA of the Act in his case. Although the mother’s appeal was said to incorporate this particular order, there was no other reference to it in her submissions.Grounds 6, 7 and 10 – failure to consider material considerations These grounds contend for the failure of the primary judge to consider a series of material considerations, being:(a)the mother’s undisputed historical role as primary carer;(b)the mother going to “considerable measures” to ensure the youngest child spent time with the father;(c)the prospect of alternative orders being made to preserve the youngest child’s relationship with the father; and(d)the effect upon the mother’s parenting capacity by her having to live with the youngest child in central west NSW and how that would affect the children. The short answer to the grounds is that the primary judge did consider the first three of those features of the evidence and the last point cannot now be maintained as a complaint. The primary judge accepted the mother had been the children’s primary carer and so it would be a “very difficult” adjustment for the youngest child if he was to live with the father instead (at [132], [137] and [147]), which was influential in the decision for him to remain living with the mother, provided she relocates his residence back within reasonable proximity to the father. As the mother correctly said, she did ensure the youngest child continued to spend time with the father in accordance with the interim orders made in May 2020 until the trial, but there was still an abundance of evidence before the primary judge about her apparent unwillingness to support the children’s relationships with the father. The mother conceded the eldest child had not seen the father since November 2017 (at [46]), despite interim consent orders made in May 2018 requiring it. Even if, as the mother said, she did not deliberately sever their relationship (at [60]), she was still unable to persuade the eldest child to comply with parenting orders to which she agreed and which she must have thought were made in his best interests. Had she not thought that, she would not have agreed to them. Conversely, if she consented to the orders believing they were contrary to the eldest child’s best interests, then such duplicity would tend to compromise the mother’s reliability. As for the youngest child, the mother’s mere compliance with the interim parenting orders requiring him to spend time with the father did not necessarily equate with her recognition of the importance of the long-term maintenance of the youngest child’s relationship with him. The Family Consultant certainly concluded the mother was trying to prevent the children from having meaningful relationships with the father (at [75], [84]–[85], [99]), labelling it “one of the worst examples of alienation [she has] seen” (at [92]). As was open, the primary judge accepted the Family Consultant’s evidence and doubted the reliability of the mother’s denials of alienating the children from the father (at [102], [127] and [137]). Such evidence and findings underpinned the ultimate conclusion that, to counteract such influence, the youngest child needed to spend substantial and significant time with the father (at [149] and [151]).