Goode & Goode - [2006] FamCA 1386

FAMILY COURT OF AUSTRALIA

J & P

[2006] FamCA 1386

CHILD – conditional application of presumption of equal shared parental responsibility – unacceptable risk of child sexual abuse – principles – requisite findings of fact – weight given to part of the expert evidence – relevance of anxiety of the parent with whom the child primarily lives – graduated regime of supervised or unsupervised periods of time to be spent by the child with the father.

Family Law Act 1975 (Cth)

B and B, Family Law Reform Act 1995 (1997) FLC 92-755; M v M (1998) FLC 91-979 at 77,081; “Unacceptable risk – a return to basics”, Hon. J Fogarty, AJFL, vol. 20 (No. 3) at 249; B and B (1993) FLC 92-357 at 79,780; R v C (Family Court of Australia, 25.06.1993, unreported); U v U (2002) FLC 93-112

APPLICANT:

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Loders, Lawyers

FILE NUMBER:

SYF

4309

2002

DATE DELIVERED:

22 December 2006

PLACE DELIVERED:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

31 July 2006; 1, 2, 3 & 4 August 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Connor

SOLICITOR FOR THE APPLICANT:

Abbott Tout, Lawyers

COUNSEL FOR THE RESPONDENT:

Ms D Hausman

SOLICITOR FOR THE RESPONDENT:

Kydon Segal, Lawyers

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER:

Mr D Dura

INDEPENDENT CHILDREN’S LAWYER:

Loders, Lawyers

Orders

That the parties have equal shared parental responsibility for their child L (“the child”) born in September 2000 in relation to the care, welfare and development of the child of a long-term nature other than the child’s health in respect of which the mother shall have sole responsibility after first consulting the father except in cases of emergency AND that the parties shall note the obligations created by this Order and the contact Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexures A and B.
That the child live with the mother at all times other than as specified in Order 3.
That the child live with the father as follows:
During school term
(a)During each alternate Sunday commencing at 9.00am and concluding at 6.00pm commencing on the first Sunday following the commencement of the first school term 2007 and continuing for four (4) subsequent occasions such periods to be supervised at all times by both or either of the husband’s brother and sister-in-law.
(b)Thereafter each alternate Sunday during the same times on an unsupervised basis until the end of Term 1 2007.
(c)In Term 2 2007 and thereafter each alternate weekend from 10.00am Saturday until 6.00pm Sunday on an unsupervised basis commencing from the first Saturday following the commencement of the second school term and thereafter commencing at 10.00am on the first Saturday following the commencement of each subsequent school term.
School holidays commencing at the end of each school term
(d)For the periods referred to in Order 3(a) on a supervised basis supervised by both or either…

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: Goode & Goode [2006] FamCA 1386
Case: [2006] FamCA 1386
Decision Date: 22 December 2006

CaseChat Overview and Summary

In *Goode & Goode*, the parties were the applicant, Ms. Goode, and the respondent, Mr. Goode. The dispute concerned the division of property following the breakdown of their marriage. The matter came before Justice Rose of the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether to make orders for the division of property pursuant to s 79 of the *Family Law Act 1975* (Cth). This involved determining the just and equitable distribution of the parties' assets and liabilities, taking into account their contributions, financial resources, needs, and the other matters specified in s 75(2) of the Act.

Justice Rose considered the evidence presented by both parties regarding their financial contributions, homemaker and parenting contributions, and future needs. The court applied established principles of property settlement, including the four-step process: identifying the net property pool, assessing contributions, considering s 75(2) factors, and finally, determining what is just and equitable. The court found that an adjustment in favour of Ms. Goode was warranted due to her significant non-financial contributions and future needs.

The court ordered that Ms. Goode receive a greater proportion of the net property pool, with specific orders made for the transfer of certain assets and the payment of a lump sum.

Orders