FAMILY COURT OF AUSTRALIA
| HOUGHTON & HOUGHTON | [2019] FamCA 498 |
| FAMILY LAW – PARENTING – Where there are two children of the marriage – Where the children are aged ten and seven – Where the mother seeks the children spend no time, or limited supervised time with the father – Where the father seeks equal shared parental responsibility and unsupervised time with the children – Where the father pleaded guilty to a criminal offence causing grievous bodily harm to the mother – Where the criminal offence involved the father running the mother over with his car – Where the father was psychologically abusive towards the mother following the incident – Where the father allegedly followed adolescent and underage girls, and took and stored photographs of such girls without their consent – Where the mother discovered such photographs but they were not before the Court – Where the mother and father’s contemporaneous communications confirmed the seriousness of the photographs – Where the father subsequently denied the photographs were of a concerning, inappropriate, or illegal nature – Where the father conceded that he was sexually attracted to females of all ages – Where the father conceded that he was sexually attracted to girls in school uniforms – Where the risk to the children would increase as the children became older – Where age is not a protective factor for the children – Where the father took inappropriate photographs of adult women, including the mother, without their consent – Where these photographs were sexual in nature – Where the father denied he took the photos, or otherwise said they were taken with the consent of the subjects – Where the photographs were found to be taken without consent and were clearly inappropriate – Where the father had taken and stored photographs of shirtless children in a posed manner – Where the father used intimidation to parent the children – Where the children presented mixed views about continuing a relationship with the father – Where the father was found to be an unacceptable risk of harm to the children – Orders for limited supervised time with the father. FAMILY LAW – PROPERTY – Where parties had no significant assets at the commencement of cohabitation – Where both parties contributed to the family – Where the husband was the primary income earner and the wife the primary carer – Where the wife provided substantial financial contributions – Where the husband provided substantial contributions by way of compensation payment – Where contributions are equal – Where the wife seeks an adjustment under the Kennon principle – Where this claim fails – Where the wife suffers from PTSD and has limited earning capacity – Where the wife has limited superannuation – Where the husband had failed to pay the mortgage and child maintenance pursuant to orders – Where the husband had arrears of child support at $37,455 at time of trial – Where there is reasonable doubt about whether the husband would contribute in the future… |
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- AGLC
- HOUGHTON & HOUGHTON [2019] FamCA 498
- Case
- [2019] FamCA 498
- Decision Date
CaseChat Overview and Summary
The court was required to decide several legal issues, including the appropriate parenting arrangements for the children, the division of the parties' property, and whether to grant a departure order from the child support assessment. The court considered the best interests of the children as the paramount consideration, as well as the factors outlined in the Family Law Act 1975 (Cth) s 60CC. The court also considered the contributions made by each party to the family and the need for any adjustment under the Kennon principle. The court found that the mother's claim for an adjustment under the Kennon principle failed, but made an adjustment in favour of the wife due to her limited earning capacity and PTSD.
The court ordered that the wife receive 70 per cent of the net assets of the parties and that the husband receive 30 per cent of the net assets after repayment of his outstanding liabilities. The court dismissed the wife's application for a child support departure order, finding that her need for support and current earning capacity had been considered in the adjustments for the property settlement. The court also ordered that the father be restrained from attending upon the mother’s place of residence, any place where the mother is employed and any school attended by the children from time to time. The mother was granted sole parental responsibility for the children, and the father was ordered to have limited supervised time with the children. The court also made orders regarding communication between the father and the children, medical information, school information, and restrictions on the father's behaviour towards the children and the mother.
Orders
Orders of the court
IT IS ORDERED
1.
That each of the husband and the wife do all acts and things required to sell the property at Suburb A Property 1 and to disburse the proceeds of sale in the following manner and priority:
(a) In payment of the mortgage outstanding to the National Australia Bank;
(b) In payment of the costs of sale including but not limited to legal fees and agents’ commission;
(c) In payment of the sum of $16,794 to Mr B;
(d) In payment of $29,123 to the wife;
(e) In payment of 70 per cent of the balance remaining to the wife from which she shall pay $10,037.50 to the husband in re-imbursement of the costs paid to Dr C and $8,683.80 in payment to the Legal Aid Commission of NSW on account of the costs of the Independent Children’s Lawyer;
(f) In payment of $43,204.88 to the Child Support Agency on account of the husband’s arrears of child support and spousal maintenance;
(g) In payment of the sum of $8,683.80 to the Legal Aid Commission of NSW on account of the husband’s share of the costs of the Independent Children’s Lawyer;
(h) In payment to the wife of the sum of $26,925 being 70 per cent of the net value of the unit in the United Kingdom;
(i) In payment of the balance to the husband.
2.
That upon the payment to the wife of the sum referred to in Order (1)(h), she shall do all things and sign all documents required to transfer to the husband, at his expense, her right, title and interest in the property in the United Kingdom and the husband shall indemnify the wife in relation to any and all liabilities secured over that property.
3.
That the application for a child support departure order be dismissed.
4.
That the father be restrained from attending upon the mother’s place of residence, any place where the mother is employed and any school attended by the children from time to time.
5.
That the mother have sole parental responsibility for the children X born … 2009 and Y born … 2012.
6.
That the mother notify the father of any proposed decision relating to the long-term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six (6) weeks prior to a final decision being made and take into consideration any views expressed by the father, in writing, about the proposed decision.
7.
That the children live with the mother.
8.
That the time that the father spends with the children pursuant to these Orders shall be supervised by an agency, organisation or person who is agreed upon by the parents at the cost of the father.
9.
That the children spend time with the father on one occasion each calendar month for a period of three hours and, in the absence of agreement that time will occur on the first Sunday of each month excepting the month of December when the time will occur on Christmas Eve.
10.
That the father notify the mother at least 14 days prior to each occasion of supervised contact where the contact is to occur and at what time and the mother will cause the children to be delivered to the supervisor at the commencement of each period and collected from the supervisor at the end.
11.
That the children be permitted to communicate with the father by email, telephone or video call at any reasonable time and the mother shall, at the request of either child, facilitate such communication.
12.
The mother shall:
(a) provide the father with and keep him advised of the names and addresses of the children’s treating doctors;
(b) inform the father in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to either of the children; and
(c) ensure that the father is provided with a copy of any report by any such specialist medical consultant in relation to either of the children, within 14 days of the receipt of the report;
(d) ensure that the father is notified as soon as practicable if either of the children is admitted to hospital; either of the children is involved in a medical emergency; or either of the children will be required to take medication when they spend time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the children are to spend with the father;
(e) authorise any treating doctor or specialist medical consultant of the children to discuss the children’s medical condition, prognosis and any medical treatment with the father.
13.
That the mother shall authorise any school which the children are attending from time to time to provide both the mother and the father with:
(a) copies of all reports, circulars, notices and documents in relation to the children including copies of all school reports, reports on school progress and behavioural issues; and
(b) any information which may be sought from time to time by the mother or by the father in relation to the children’s education.
14.
That the mother and the father notify each other of any change in residence, telephone contact numbers and email address, such notification to be made in writing and within twenty-four (24) hours of any change.
15.
That the mother notify the father of the name and address of any school the children attend and any place of work where she is employed or works as a contractor.
16.
That the mother and the father are restrained from discussing these proceedings in the hearing of or presence of either of the children; speaking about the other parent or the other parent’s family or members of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children; and shall take all reasonable steps to prevent any other person discussing these proceedings in the hearing of or presence of either of the children or speaking about the other parent or the other parent’s family or members of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
17.
That the father be restrained from photographing or videoing either of the children in full or partial state of undress; and publishing or sharing any photograph or video of either of the children or the mother (including on any website or social media platform) without the prior written consent of the mother.
18.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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