HOSKING & BUTCHER - [2015] FCCA 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOSKING & BUTCHER

[2015] FCCA 2019

Catchwords:

FAMILY LAW – Children – psychiatric assessments of the parents – father exhibited a paranoid delusional set of beliefs – need to protect the children from physical or psychological harm – capacity to provide for the children’s needs – family violence – sole parental responsibility – children to live with mother and have no contact with father.

FAMILY LAW – Property – de facto relationship – is it just and equitable to make any orders – the parties existing legal and equitable interests in property – contributions – the father’s significantly greater initial contributions – homemaker and parent contributions – subsection 90SF(3) factors – avoidance of Child Support obligations – physical and mental capacity for gainful employment – funds in children’s bank accounts – no order for alteration of property interests.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 75, 79, 90SF,90SM

Family Violence Protection Act 2008 (Vic)

Bevan & Bevan (2013) FLC 93-545
Bigelow & Reuter [2006] FamCA 1455
KB & TC (2005) FLC 93-224
Champness & Hanson (2009) FLC 93-407
Clauson & Clauson (1995) FLC 92-595
C & C (2005) FLC 93-220
Ferraro & Ferraro (1993) FLC 92-335
Hickey&Hickey (2003) FLC 93-143
Hirst & Rosen (1982) FLC 91-230
Lee Steere & Lee Steere (1985) FLC 91-626
Mallet v Mallet (1984) FLC 91-507
MRR v GRR (2010) FLC 93-424
Mulvaney & Lane (2009) FLC 93-404
Parshen & Parshen (1996) FLC 92-720
Pierce v Pierce (1999) FLC 92-844
R v Freeman [2011] VSC 139
R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248
Rolfe and Rolfe (1979) FLC 90-62
Russell v Russell (1999) FLC 92-877
Runcorne & Raine [2008] FamCA 837
Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70
Wainder & Wainder (2011) FLC 93-473

Applicant:

MS HOSKING

Respondent:

MR BUTCHER

File Number:

MLC 4128 of 2014

Judgment of:

Judge Roberts

Hearing dates:

16, 17 and 18 March 2015

Date of Last Submission:

18 March 2015

Delivered at:

Launceston

Delivered on:

5 August 2015

REPRESENTATION

Counsel for the Applicant:

Ms E Swart

Solicitors for the Applicant:

Cahill & Rowe Family Law

The Respondent appeared unrepresented

Counsel for the Independent Children's Lawyer:

Mr L Marchetti

Solicitors for the Independent Children's Lawyer:

David Stagg Tonkin & Company

ORDERS

That MS HOSKING (“the mother”) have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2010 (“the children”).
That the children live with the mother.
That MR BUTCHER (“the father”) is not to spend time with, or communicate with the children or either of them.
That MS HOSKING be and is hereby appointed to be the sole signatory in relation to (omitted) Bank Kids Saver account number (omitted) in the name of X born (omitted) 2008 and (omitted) Bank Kids Saver account number (omitted) in the name of Y born (omitted) 2010.
That the preceding Order hereof is sufficient authority for the (omitted) Bank to enable…

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 HOSKING & BUTCHER

Details

AGLC: HOSKING & BUTCHER [2015] FCCA 2019
Case: [2015] FCCA 2019
Decision Date: 5 August 2015

CaseChat Overview and Summary

In the Family Court of Australia, Judge Roberts considered applications by Ms. Hosking (the mother) and Mr. Butcher (the father) concerning their children and property. The dispute involved the welfare of the children, X and Y, and the division of property following the breakdown of the parties' de facto relationship. The mother sought sole parental responsibility and orders for the children to live with her, with no contact with the father, citing concerns about his mental health and capacity to care for them. The father sought property orders, asserting his greater initial contributions to the relationship.

The court was required to determine two primary legal issues. Firstly, in relation to the children, the court had to assess whether it was in their best interests to grant the mother sole parental responsibility and to prohibit any contact between the children and the father, considering the father's psychiatric condition and the potential for harm. Secondly, concerning property, the court had to decide whether it was just and equitable to make any orders altering the parties' existing legal and equitable interests, taking into account their contributions, the factors under subsection 90SF(3) of the Family Law Act 1975 (Cth), and the father's conduct in relation to child support obligations.

On the issue of the children, Judge Roberts found that the father exhibited a paranoid delusional set of beliefs, which posed a risk of physical or psychological harm to the children. The court concluded that it was necessary to protect the children from such harm and that the father lacked the capacity to provide for their needs. Consequently, the court ordered that the mother have sole parental responsibility, that the children live with her, and that the father have no contact with them. Regarding property, the court acknowledged the father's significantly greater initial contributions but also considered the mother's contributions as homemaker and parent. The court also took into account the father's avoidance of child support obligations and his physical and mental capacity for gainful employment. Ultimately, the court found that it was not just and equitable to make any orders altering the parties' property interests, and therefore dismissed the mother's application for property orders.

Orders

Orders of the court

That MS HOSKING (“the mother”) have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2010 (“the children”).

That the children live with the mother.

That MR BUTCHER (“the father”) is not to spend time with, or communicate with the children or either of them.

That MS HOSKING be and is hereby appointed to be the sole signatory in relation to (omitted) Bank Kids Saver account number (omitted) in the name of X born (omitted) 2008 and (omitted) Bank Kids Saver account number (omitted) in the name of Y born (omitted) 2010.

That the preceding Order hereof is sufficient authority for the (omitted) Bank to enable MS HOSKING to operate those two accounts to the exclusion of MR BUTCHER.

That the mother’s application for property orders is dismissed.

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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