FAMILY COURT OF AUSTRALIA
Homewood & Parkinson [2021] FamCA 516
File number(s): ADC 747 of 2015 Judgment of: BERMAN J Date of judgment: 16 July 2021 Catchwords: FAMILY LAW – CHILDREN – Parental responsibility – Best interests of child – Where family violence is a factor in the proceedings – Where the parties cannot agree to an approach for the ongoing care of the children – Where the father’s conduct directed towards the mother speaks against shared parental responsibility – Where it is not in the bests interests of the children that there be shared parental responsibility.
FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Best interests of child – Family Violence – Child’s views – Where the mother seeks that there be no time spending with the father – Where the father seeks a resumption of time initially on a supervised basis and with one of the children’s attendance to be subject to their wishes – Where there are allegations of family violence – Where the mother considers the father presents as a risk to the children – Where one of the children is resistant to spending time with the father – Consideration of whether a meaningful relationship with the father would be in the children’s best interests – Where there is a finding that the father has perpetrated family violence – Where the evidence does not suggest that the father poses a direct threat to the children – Consideration of the impact of time spending on the mother’s ability to parent the children – Where the relationship between the father and one of the children should be fostered – Orders.
FAMILY LAW – PROPERTY SETTLEMENT – Leave to file application out of time – Where the mother seeks leave to initiate property proceedings out of time – Where the father opposes the application – Where the mother initiated both parenting and property proceedings in 2015 – Where the mother discontinued the proceedings shortly thereafter – Where the mother again initiated proceedings in 2018 but only as to parenting matters – Where the mother amended her application to seek orders as to property settlement – Where the mother was declared bankrupt in 2014 – Whether hardship would be caused if leave were not granted – Whether the Court should exercise its discretion to grant leave – Where the mother has a prima facie claim – Where hardship is established – Where the mother’s evidence does not provide a ready explanation for delay – Where the father would not be prejudiced – Leave granted.
FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Future needs – Family Violence – Where the mother seeks 67.5 per cent of the property pool – Where the father seeks that each party retain property and superannuation currently held by each of them – Where the parties were in a de facto relationship for a little over five years – Where there are two children of the relationship…
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CaseChat Overview and Summary
The court was required to determine several key issues. Firstly, regarding parenting, the court had to decide whether shared parental responsibility was in the children's best interests, particularly in light of the allegations of family violence and the mother's concerns about the father's conduct. Secondly, the court needed to determine the specific arrangements for the children to live with and spend time with each parent, considering the children's views and the impact of any proposed arrangements on the mother's ability to parent. Thirdly, the court had to consider whether to grant the mother leave to initiate property proceedings out of time, assessing the potential hardship and prejudice to either party. Finally, if leave was granted, the court was required to determine the contributions of each party and their future needs to divide the property pool.
Berman J found that a consensus approach to the children's ongoing care was not possible and that shared parental responsibility would not be in the children's best interests due to the father's low regard for the mother and the resulting anxiety and fear experienced by her. Consequently, the mother was granted sole parental responsibility, with the father to be contacted in writing regarding long-term issues. The children were ordered to live with the mother. Time spent with the older child, X, was to be as he wished, facilitated by the mother. Time spent with the younger child, Y, was to commence with supervised contact and gradually increase, contingent on the father engaging in therapeutic intervention focused on impulse control, anger management, and respectful communication. Regarding property settlement, leave was granted to the mother to proceed out of time, finding that hardship would be caused if leave were not granted and that the father would not be prejudiced. In settlement, the father was ordered to pay the mother $87,855 within 90 days, with provision for the sale of a property if payment was defaulted. The mother was to retain her separate savings, vehicle, furniture, clothing, jewellery, and any benefits from a deceased estate, while the father was to retain the Suburb C property, his separate savings, furniture, clothing, jewellery, and any benefits from a deceased estate.
Orders
Orders of the court
ADC 747 of 2015
BETWEEN:
MS HOMEWOOD
Applicant
AND:
MR PARKINSON
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS:
1. That all previous orders be discharged.
2. That the mother have sole parental responsibility for X born … 2010 and Y born … 2014 (collectively “the children”) provided that the mother will contact the father in writing in connection with any long term issues involving the children and any decisions that she intends to make.
3. That the children live with the mother.
4. That X shall spend time with the father as may be agreed between the parties subject to X’s wishes provided that if X shall express a wish to spend time with and or communicate with the father then the mother will do all things necessary to facilitate the said time to be spent or communication.
5. That the father shall spend time with Y as follows:
(a) For six (6) periods of two (2) hours duration at a frequency of one (1) period each fourteen (14) days to be supervised at the B Centre upon such terms and conditions as may be nominated by the Director of the said centre.
6. That the parties will do all things necessary to facilitate the enrolment of the parties and the child at the said centre.
7. That thereafter the father shall spend time with Y as follows:
(a) That for a period of six (6) months commencing on the fourth Saturday following the publication of the report prepared by the family consultant, on each alternate Saturday from 1.00 pm until 5.00 pm;
(b) Subject to compliance with paragraph 10, for the following six (6) months thereafter on each alternate Saturday from 10.00 am until 4.00 pm;
(c) For a further six (6) months thereafter from the conclusion of school on Friday until 4.00 pm on Saturday and each alternate weekend and thereafter from the conclusion of school on Friday until 4.00 pm on Sunday on each alternate weekend.
(d) Commencing in the September/October 2022 school holidays for one half of the short end of term school holidays as may be agreed between the parties but in default of agreement the father shall have the first half of the holidays from the conclusion of school until the middle Saturday at 5.00 pm.
(e) Commencing with the Christmas school holiday period in 2022 on each alternate week but in default of agreement the father’s time shall commence from 5.00 pm on the first Saturday after the last day of the school term until the following Saturday at 5.00 pm and each alternate week thereafter.
(f) From 4.00 pm Christmas Eve until 4.00 pm on Christmas Day in 2022 and each alternate year thereafter;
(g) From 4.00 pm Christmas Day until 4.00 pm on Boxing Day in 2023 and each alternate year thereafter.
8. That the children shall spend time with the mother:
(a) From 4.00 pm Christmas Day until 4.00 pm on Boxing Day in 2022 and each alternate year thereafter;
(b) From 4.00 pm Christmas Eve until 4.00 pm on Christmas Day in 2023 and each alternate year thereafter.
9. That handover shall occur at such place as the parties may agree but in the absence of agreement either at a Police Station that is geographically close to the mother’s residence or at a Children’s Contact Service subject to availability and acceptance into the handover scheme.
10. That for a period of six (6) months from the date of this order the father shall attend upon a suitably qualified psychologist, social worker or therapist to comply with all instructions, counselling/or therapies as may be recommended by him or her with such therapeutic intervention to be directed to the following areas:
(a) Impulse control, frustration and self-awareness management;
(b) Psychoeducation regarding the physiological and psychological queues to anger;
(c) Anger arousal reduction techniques, e.g. deep breathing and calming techniques;
(d) Safe, appropriate and respectful physical and emotional ways to “release” anger;
(e) Differentiating between assertiveness and being hostile;
(f) Rebuilding relationships damaged by anger issues; and
(g) Communicating needs without disrespecting others;
and that he shall forward to the mother a document confirming that he has attended on at least six (6) sessions.
11. That each party is at liberty to receive all information, reports and photographs taken of the children from the school at which the children attend.
12. That if any of the children suffer a medical emergency the parent with whom the child is residing or spending time with shall notify the other parent as soon as is reasonably practical and advise of the nature of the medical emergency and the details of any hospitalisation or other treatment.
13. That the father is at liberty to forward gifts, presents and appropriate communication to the children to celebrate and/or commemorate their birthdays, Easter, Christmas and other special occasions provided that the mother will provide to the father appropriate contact details and/or a forwarding address.
14. That the parties are restrained and an injunction is granted restraining each of them from:
(a) Denigrating the other parent to or in the presence of the children or allowing any another person to do so; and
(b) Denigrating the other parent on any social media website or forum or allowing any other person to do so.
15. That pursuant to s 44(6) of the Act leave be granted to the mother to proceed out of time with respect to an application for the alteration of property interests pursuant to s 90SM of the Act.
16. That in full and final settlement of any claim that either party may have against the other for settlement of property or alteration of interests in property pursuant to Pt VIIIAB of the Act:
(a) That within ninety (90) days of this order the father shall pay to the trust account of Cardone and Associates for and on behalf of the mother the sum of EIGHTY SEVEN THOUSAND EIGHT HUNDRED AND FIFTY FIVE DOLLARS $87,855 (the said “settlement sum”).
(b) That in default of the payment of the settlement sum in whole or in part and should the default continue for more than thirty (30) days from the date of the prescribed payment then the parties shall do all things and sign all documents as are necessary to cause the property situate at D Street, Suburb C, South Australia (“the Suburb C property”) to be sold by such manner, at such price, and subject to such conditions as shall be agreed between the parties and in the absence of agreement as may be determined by this Honourable Court upon the application of either party.
(c) That from the net proceeds of the sale of the Suburb C property the mother shall receive so much of the settlement sum as shall remain outstanding together with default interest as calculated at the rate prescribed by rule 17.03 of the Family Law Rules 2004 (Cth) (“the Rules”) to be calculated as and from the date of default until the date of payment to the mother.
17. That the mother shall retain to the exclusion of the father:
(a) Her separate savings including funds in various accounts;
(b) Her motor vehicle;
(c) Her furniture and household contents;
(d) Her clothing and jewellery;
(e) Any benefits, rights or entitlements due or accruing to or which may vest in her under any deceased estate; and
(f) Any other real and/or personal property or financial resources in her name or possession not otherwise specified.
18. That the father shall retain to the exclusion of the mother:
(a) The Suburb C property;
(b) His separate savings including any funds in any account;
(c) His furniture and household contents;
(d) His clothing, jewellery and personal effects;
(e) All benefits, rights or entitlements due or accruing to or which may vest in him under any deceased estate; and
(f) Any other real and/or personal property or financial recourses in his name or possession not otherwise specified.
19. That each party do indemnify the other in relation to their separate debts.
20. That the proceedings be removed from the pending list of cases.
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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