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Lainhart & Ellinson

Lainhart & Ellinson

Case [2023] FedCFamC2F 931 27 July 2023

Parental Responsibility

Supervised Contact

Property Settlement

Alteration of Property

Family Violence

Best Interests of the Child

Non-Superannuation Property

Superannuation

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lainhart & Ellinson [2023] FedCFamC2F 931

File number(s): SYC 4512 of 2018

Judgment of: JUDGE MORLEY

Date of judgment: 27 July 2023

Catchwords:
FAMILY LAW – parenting – family violence perpetrated by Father to Mother – unacceptable risk – Father to undergo course of therapy, therapist to provide report to Mother – time to be supervised until report provided.

FAMILY LAW – property – just and equitable to make an order under section 79.

Legislation:
Child Support (Assessment) Act 1989

Evidence Act 1995 (Cth) ss 50, 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DA, 65DAA, 65DAB, 65Y, 68B, 68C, 68L, 75, 79

Crimes (Domestic and Personal Violence) Act 2007 (NSW) pt 8

Cases cited:
A & A & The Child Representative [1998] FamCA 25

Bemert &Swallow [2009] FamCA 5

Briginshaw v Briginshaw (1938) 60 CLR 336

Clanton & Lachman [2022] FedCFamC2F 401

Grella & Jamieson [2017] FamCAFC 21

Harridge and Anor & Harridge and Anor [2010] FamCA 445

Jacks & Samson [2008] FamCAFC 173

Johnson & Page [2007] FamCA 1235

L & T [1999] FamCA 1699

M v M (1988) 166 CLR 69

Manifold & Alderton [2021] FamCAFC 61

Napier & Hepburn [2006] FamCA 1316

Oberlin & Infeld [2021] FamCAFC 66

Petrellis & Petrellis [2023] FedCFamC1A 104

Preston & Preston [2022] FedCFamC1A 157

W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892

Division: Division 2 Family Law

Number of paragraphs: 336

Date of hearing: 25-27 October 2021, 27 April 2022 and 21 June 2022

Place: Sydney

Counsel for the Applicant: Mr Schonell SC (25-27 October 2021) Mr Kearney SC (27 April 2022, 21 June 2022)

Solicitor for the Applicant: Broun Abrahams Burreket

Counsel for the Respondent: Mr Lethbridge SC

Solicitor for the Respondent: Ogge Law

Counsel for the Independent Children’s Lawyer: Ms Stolier

Solicitor for the Independent Children’s Lawyer: Mark Whelan Lawyer (25-27 October 2021), Kathryn Renshall Lawyers (27 April 2022, 21 June 2022)
ORDERS

SYC 4512 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LAINHART

Applicant

AND:
MR ELLINSON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

27 JULY 2023

THE COURT ORDERS:
Parenting
Parental Responsibility
1.That the Mother shall have sole parental responsibility for decisions pertaining to the long term care, welfare and development of the child, X born in 2017 (“the child”), including the child’s religious and cultural upbringing, the child’s health and the child’s education.
2.That the Mother will inform the Father promptly in relation to any decisions pertaining to the long-term care, welfare and development of the child including the child’s religious and cultural upbringing, the child’s health and the child’s education, in writing.

Live With
3.That X live with her Mother.

Spend Time With
4.X spend time with her Father as follows:
(a)Pending order 4(b) taking effect, the child shall spend supervised time with the Father (within the meaning of order 9 herein) on each Saturday for a period…

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 Lainhart & Ellinson

Details

AGLC: Lainhart & Ellinson [2023] FedCFamC2F 931
Case: [2023] FedCFamC2F 931
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Division 2, the case of Lainhart v Ellinson [2023] FedCFamC2F 931 involved a dispute between Ms Lainhart and Mr Ellinson over parenting arrangements and property distribution following the breakdown of their relationship. The court was required to determine whether the father's anger management issues posed a risk to the child and to make appropriate parenting orders. Additionally, the court had to decide on the distribution of the parties' property and superannuation entitlements.

The court found that the father's anger management issues and history of family violence against the mother posed a risk to the child, and that the mother's proposed parenting orders were in the best interests of the child. The court ordered that the child would live with the mother and spend supervised time with the father, with the supervision to be lifted gradually as the father completed a course of therapy and demonstrated an understanding of the need to manage his anger. The court also ordered that the mother have sole parental responsibility for major decisions regarding the child's care, welfare, and development.

In relation to the property distribution, the court found that it was just and equitable to make an order under section 79 of the Family Law Act 1975 (Cth). The court considered the financial and non-financial contributions of the parties and determined that the wife's contributions favoured her as to 55% of the non-superannuation property and 53% of the superannuation entitlements. The court also found that an adjustment in favour of the wife was warranted, considering factors such as the wife's future care and financial support of the child, and the husband's failure to make payments on the loan account secured by mortgage on the former matrimonial home.

The court made orders that the wife would have 60.5% of the net non-superannuation property and 53% of the superannuation entitlements, while the husband would have 39.5% of the non-superannuation property and 47% of the superannuation entitlements. The court also made various parenting orders, including the child's name change and provisions for the child's time with each parent during school holidays and special occasions.

Orders