Herbert and Herbert (No 2) - [2020] FamCA 217

FAMILY COURT OF AUSTRALIA

HERBERT & HERBERT (NO. 2)

[2020] FamCA 217

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of a child – Where there are two subject children – Where an interim order that the older sibling shall live with whichever parent he personally determines from time to time, and that parent shall have sole parental responsibility for him, will remain in place as the final parenting order with respect to that child – Where parenting arrangements for the younger child must still be determined – Where the father seeks the child continue to live with him – Where the mother seeks that the child return to live with her – Where the Court finds that if the child was to return to living with his mother his relationship with his father would cease to exist in a meaningful way within a short space of time – Where the father is the parent more likely to promote the child having a relationship with both his parents – Where the child is not at an unacceptable risk of physical or emotional harm in the father’s household, as contended by the mother – Where the mother would not give the child the emotional permission to have a relationship with his father and would do nothing to facilitate it if the child lived with her – Where it is in the child’s best interests to spend time with his mother and where supervision will provide the child with protection from his mother’s influence – Where the parents cannot communicate civilly and it is not in the best interests of the child for the parents to have equal shared parental responsibility – Where the father will have sole parental responsibility – Where the child will live with the father and spend two to three hours on one day of each second weekend with his mother supervised at a contact centre.

FAMILY LAW – PROPERTY – Where the wife seeks a property adjustment such that she receive a 70% share of the total of the net property and 50% of the superannuation interests of both parties – Where the husband seeks a property adjustment such that he receive 60% of the net property pool and the wife receive 40% - Where contributions by the parties during the marriage and post-separation should be assessed as equal – Where an adjustment in the wife’s favour of 10% in consideration of s 79(4) and s 75(2) matters is just and equitable – Where the property will be divided as to 60% of the net total in favour of the wife and as to 40% in favour of the husband.

Family Law Act 1975 (Cth)

Kowaliw (1981) FLC 91-092
Stanford (2012) FLC 93-518

APPLICANT:

Mr Herbert

RESPONDENT:

Ms Herbert

INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid

FILE NUMBER:

BRC

4902

2017

DATE DELIVERED:

25 March 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

29,…

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 Herbert and Herbert (No 2)

Details

AGLC: Herbert and Herbert (No 2) [2020] FamCA 217
Case: [2020] FamCA 217
Decision Date: 25 March 2020

CaseChat Overview and Summary

This case concerned parenting arrangements for two children, X and Y, and a property adjustment between their parents. The primary dispute in relation to the children involved whether the younger child, Y, should live with his father or return to live with his mother. The mother also contended that the father's household posed an unacceptable risk of harm to Y. In relation to property, the wife sought a 70% share of the net property and 50% of superannuation, while the husband sought a 60% share of the net property.

The court was required to determine the final parenting orders for both children, with a particular focus on the living arrangements and parental responsibility for Y, and to make a just and equitable property adjustment between the parties. The court had to consider the best interests of the children, including their relationships with both parents and the capacity of each parent to promote such relationships, as well as the risk of harm. For the property division, the court needed to assess the contributions of each party and consider relevant factors under sections 79(4) and 75(2) of the *Family Law Act 1975* (Cth).

Forst J found that the older child, X, should continue to live with whichever parent he determined from time to time, with that parent having sole parental responsibility for major long-term decisions, except for decisions about X's name which would be shared. Regarding Y, the court determined that Y should live with his father and that the father would have sole parental responsibility for major long-term decisions, again with shared responsibility for decisions about Y's name. The court found that the mother would not facilitate Y's relationship with his father and that Y would cease to have a meaningful relationship with his father if he returned to live with his mother. The court also found that Y was not at an unacceptable risk of harm in the father's care and that supervised time with his mother was in Y's best interests, to protect him from the mother's influence. The father was ordered to facilitate supervised contact between Y and his mother for two to three hours on one day of every second weekend at a contact centre. In relation to property, the court found that contributions during the marriage and post-separation were equal and ordered a division of 60% in favour of the wife and 40% in favour of the husband, representing a 10% adjustment in the wife's favour considering section 79(4) and 75(2) matters.

Orders

Orders of the court

Parenting

That all previous parenting orders in respect of the children, X born … 2003 and Y born … 2009, (“the children”) are discharged.

That the child, X born … 2003 shall live with whichever parent he shall personally determine from time to time.

That the parent with whom X is living from time to time shall have sole parental responsibility for decisions to be made about major long-term issues in X’s life (as defined in section 4 of the Family Law Act 1975 (Cth)) save for decisions about X’s name for which parental responsibility shall be shared equally.

That the child, Y born … 2009 shall live with the father.

That the father shall have sole parental responsibility for decisions to be made about major long-term issues in Y’s life (as defined in section 4 of the Family Law Act 1975 (Cth)) save for decisions about Y’s name for which parental responsibility shall be shared equally.

That the father shall not move Y’s place of residence so as to make it significantly more difficult for him to spend time with the mother in the event that his time with her becomes unsupervised at some time in the future.

That commencing as soon as it is able to be put in place, Y shall spend two hours (or three if that can be accommodated by a provider) on one of the days of each second weekend in the independently supervised care of his mother.

That the supervised time provided for in paragraph (7) hereof shall take place at a not-for-profit, community based Children’s Contact Centre located within the Council 1, Council 2, or Council 3 boundaries or an independent private, commercial provider of supervised contact visits also located within the same boundaries.

That the particular Children’s Contact Centre or private, commercial provider that is to provide the supervision of Y’s time with the mother shall be chosen by the mother and she shall inform the father in writing of her choice or choices as soon as she has made them.

10.

That the father shall do all things necessary to register with the Children’s Contact Centre or private, commercial provider chosen by the mother, so that Y’s supervised time with his mother may start as soon as it is able to be accommodated.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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