FAMILY COURT OF AUSTRALIA
| KILPATRICK & KILPATRICK | [2017] FamCA 432 |
| FAMILY LAW – CHILDREN – With whom a child spends time – Where the litigation devolved into an argument over parenting arrangements for only the youngest child – Where the mother seeks a positive finding the youngest child was at unacceptable risk of psychological harm by reason of the father’s conduct – Where the evidence established the risk – Concluded that although permanent supervision would eradicate any risk of his sexual abuse by the father, it could not satisfactorily attenuate the risk of his psychological harm from exposure to parental conflict – No order for the youngest child to spend time or communicate with the father FAMILY LAW – PROPERTY SETTLEMENT – Where at the commencement of cohabitation neither party had any asset or liability of significant value – Where the mother’s income was significantly more than the father’s – Where the mother’s parents large monetary gift accounts for a considerable proportion of their current wealth – Where the mother will have very little financial assistance from the father in form of child support – Concluded the mother’s contribution-based entitlement should be measured at 60 per cent – Concluded the relatively modest value of the parties’ property and superannuation warrants an adjustment in the mother’s favour being expressed as a lump sum to alleviate the financial burden of the children over the next five years |
| Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68P, 68Q, 75, 79 Family Law Rules 2004 (Cth), r 15.41 |
| Betros & Betros [2017] FamCAFC 90 Bevan & Bevan (2013) 49 Fam LR 387 Hepburn & Noble (2010) FLC 93-348 Lester & Lester [2014] FamCAFC 209 Marriage of Clauson (1995) 18 Fam LR 693 Marriage of Phillips (2002) 29 Fam LR 128 Marriage of Sedgley (1995) 19 Fam LR 363 Michaels v Commonwealth (2002) 124 FCR 473 NSW Bar Association v Somosi (2001) 48 ATR 562 Parrott v Public Trustee of NSW (1993) 17 Fam LR 785 Rogers v The Queen (1994) 181 CLR 251 Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19 Stanford v Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Kilpatrick |
| RESPONDENT: | Mr Kilpatrick |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Blackman, Legal Aid Gosford NSW |
| FILE NUMBER: | NCC | 1686 | of | 2016 |
| DATE DELIVERED: | 22 June 2017 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 29, 30 & 31 May 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Boyd |
| SOLICITOR FOR THE APPLICANT: | Kernick Law |
| COUNSEL FOR THE RESPONDENT: | Ms Carty |
| SOLICITOR FOR THE RESPONDENT: | CBD Law |
| SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O'Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Blackman, Legal Aid Gosford NSW |
Orders
The mother shall have sole parental responsibility for the children:
(a)B, born … 2000; and
(b)C, born … 2004.
The children shall live with the mother.
Pursuant to s 68B of the Family Law Act, the father is restrained…
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- AGLC
- Kilpatrick & Kilpatrick [2017] FamCA 432
- Case
- [2017] FamCA 432
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the youngest child was at an unacceptable risk of psychological harm from the father's conduct, and if so, what parenting orders were appropriate. Additionally, the court was required to determine the appropriate division of the parties' property, considering their respective contributions, financial circumstances, and the significant financial gift received by the mother from her parents.
The court found that the evidence established a risk of psychological harm to the youngest child from exposure to parental conflict, even if permanent supervision might mitigate the risk of sexual abuse. Consequently, the court made no orders for the youngest child to spend time or communicate with the father, granting the mother sole parental responsibility. Regarding property settlement, the court determined that the mother's contribution-based entitlement should be assessed at 60 per cent, reflecting her higher income and the substantial gift from her parents. An adjustment in her favour was made, expressed as a lump sum payment to the father, to alleviate the financial burden of raising the children over the next five years.
Orders
Orders of the court
1.
The mother shall have sole parental responsibility for the children:
(a) B, born … 2000; and
(b) C, born … 2004.
2.
The children shall live with the mother.
3.
Pursuant to s 68B of the Family Law Act, the father is restrained from:
(a) Approaching or contacting the mother other than through a legal representative, save as to comply with Order 7 hereof; and
(b) Entering upon or approaching within 100 metres of:
(i) The mother’s residence;
(ii) The mother’s place of work;
(iii) Any school attended by either child; and
(iv) Any place of work of either child.
4.
Each party is restrained from denigrating the other in the presence or hearing of the youngest child and from permitting the youngest child to remain in the presence or hearing of another person denigrating the other.
5.
The mother shall notify the father of any medical emergency, illness or injury suffered by the children whilst in her care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.
6.
The mother shall authorise and request the principals of any schools attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.
7.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number.
8.
The mother shall pay to the father the sum of $69,337 within two months of the date hereof.
9.
Subject to compliance with Order 8 hereof, and in consideration of that payment, the mother is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier Lot … DP …, being the property more commonly known as D Street, Suburb E, NSW (“the property”), and the father shall do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the property to the mother contemporaneously with his receipt of payment pursuant to Order 8 hereof.
10.
Subject to compliance with Order 9 hereof, and in consideration of that transfer, the mother shall indemnify and keep indemnified the father against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the property.
11.
In default of Order 8 hereof, the mother shall do all such acts and things and sign all such documents as may be necessary to list the property for sale by public auction on the following terms:
(a) The property shall be listed for auction sale within six weeks of the date of default;
(b) The auctioneer, in the event of disagreement between the parties, shall be the auctioneer chosen by ballot from the respective choices of the parties;
(c) The reserve price shall be as agreed between the parties, and in the event of disagreement between the parties, the reserve price nominated by the auctioneer;
(d) In the event the property is not sold by auction, or private negotiation within a further seven days, then the property shall be submitted to successive auctions within further six weeks periods until sold, otherwise on the same terms and conditions as applied to the first auction;
(e) The mother is restrained from charging, mortgaging, or otherwise encumbering the property, save as to enable her compliance with Order 8 hereof.
12.
Upon completion of the sale of the property pursuant to Order 11 hereof, the mother shall ensure the proceeds of sale are disbursed as follows:
(a) First, to pay all costs, commissions, and expenses of the sale and to pay any Council and water rates outstanding in respect of the property;
(b) Secondly, to pay:
(i) The sum of $77,968 to herself;
(ii) 60 per cent of the remaining balance to herself; and
(iii) The remainder to the father.
13.
The father is declared the sole legal and beneficial owner (as between the parties) of the following items of personal property and, within 14 days hereof, the mother shall deliver such property to the paternal grandmother on the father’s behalf:
(a) Kite;
(b) Wall hanging – …;
(c) Items from TV cabinet – …;
(d) Statue on wood base – 20 cm high;
(e) Two German beer steins – …
(f) 5 stack DVD player;
(g) Wood/glass pendulum wall clock;
(h) LPs – approximately 4 milk crates;
(i) Books – 30 years collection – in bookcase in main b/r walk in robe;
(j) Wedding ring – gold;
(k) Video camera;
(l) Necklace;
(m) Hand trolley; and
(n) Gum boots.
14.
Otherwise:
(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed in the possession of the superannuant; and
(b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession and any debts in their respective sole names.
15.
In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of the orders made under Part VIII, the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act.
16.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that the orders made under Part VII create, particulars of the consequences that may follow contravention of those orders, and details of assistance to comply with those orders are set out in the attached Fact Sheet, which forms part of those orders.
17.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
18.
Costs are reserved for 28 days.
19.
Any and all other outstanding applications are dismissed.
Notation
(A) These orders intentionally make no provision for the children to spend time or communicate with the father. If, when, and how the children may do so are decisions to be made by the mother as an incident of her sole parental responsibility for them.
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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