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Case [2020] FamCA 1081 17 December 2020

Family Law

Civil Procedure

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Amended pursuant to r 17.02A of the Family Law Rules 2004 (Cth) on 18 December 2020

FAMILY COURT OF AUSTRALIA

LEWIS & LEWIS

[2020] FamCA 1081

FAMILY LAW – Parenting –Where the mother seeks orders for the children to live with the her – Where the mother seeks orders that the children spend no time with the father – Where the father seeks equal shared responsibility for two of the three children – Where serious allegations of family violence have been made – Where the eldest child has severe mental health issues and deeply hostile attitude towards the father – Where the eldest child has expressed suicidal and homicidal ideation in relation to the father – Where the eldest child has threatened possible suicide, self-harm or homicide of his younger sisters are ordered to spend any time with the father – Whether the Court should await release of Single Expert family report before further considering if younger sisters should spend time with the father – Turns on its own facts

FAMILY LAW – Spousal maintenance –Where the mother seeks orders for spousal maintenance –Where both parties will receive $150,000 after sale of former matrimonial home –Where the mother has no present source of income – Claims that due to care of children she will find it difficult to find work – Where the father contends that he also does not have capacity to pay any spousal maintenance – Where the father has greater income but higher expenses – Where payment of $100 per week ordered.

Family Law Act 1975 (Cth) ss 4AB, 60CC, 60CG, 61DA, 65D, 65DAA, 65DAC, 72, 74, 75, 77, 80
Family Law Rules 2004 (Cth) Div 15.5.2

A & A (1998) FLC 92-800
B & B (1993) FLC 92-357
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
Boyce & Boyce [2015] FamCAFC 60
CDJ v VAL (1998) 197 CLR 172
Cox & Pedrana (2013) FLC 93-537
Crouper & Mitchell [2014] FamCAFC 246
Damiani & Damiani (No 2) [2009] FamCAFC 215
Dundas & Blake (2013) FLC 93-552
Eaby & Speelman (2015) FLC 93-654
Fewster & Drake (2016) FLC 93-745
Goode & Goode (2006) FLC 92-286
Hall v Hall (2016) 257 CLR 490
Helbig & Rowe and Ors [2016] FamCAFC 117
In the Marriage of A (1998) FLC 92-800
M v M (1998) 166 CLR 69
Maldera & Orbel (2014) 52 Fam LR 24
Marvel & Marvel [2010] 43 Fam LR 348
MRR v GR (2010) 240 CLR 461
N & S and the Separate Representative (1996) FLC 92-665
Osferatu & Osferatu [2012] FamCA 408
Redman & Redman (1987) FLC 91
Robertson & Sento [2009] FamCAFC 49
Salah & Salah (2016) FLC 93-713
SCVG & KLD (2014) FLC 93-582
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Lewis

RESPONDENT:

Ms Lewis

INDEPENDENT CHILDREN’S LAWYER:

El Baba Lawyers Pty Ltd

FILE NUMBER:

SYC

1716

2020

DATE DELIVERED:

17 December 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

16 &…

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.

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Details

AGLC: LEWIS & LEWIS [2020] FamCA 1081
Case: [2020] FamCA 1081
Decision Date

CaseChat Overview and Summary

The case of Lewis & Lewis involved parenting and spousal maintenance proceedings between Mr. Lewis (the father) and Ms. Lewis (the mother) concerning their three children: X, Y, and Z. The mother sought orders for the children to live with her and for them to spend no time with the father. The father sought equal shared responsibility for two of the three children. Serious allegations of family violence were made, and the eldest child, X, presented with severe mental health issues, including suicidal and homicidal ideation directed towards the father, and had threatened self-harm or harm to his younger sisters if they were to spend time with him. The mother also sought spousal maintenance.

The court was required to determine several legal issues. Primarily, it needed to consider whether to await the release of a single expert family report before making further decisions regarding the younger sisters, Y and Z, spending time with their father, given the severe mental health issues and threats made by their elder brother, X. Additionally, the court had to address the mother's claim for spousal maintenance, considering the parties' financial positions post-sale of their former matrimonial home, the mother's lack of present income due to childcare responsibilities, and the father's contention that he lacked the capacity to pay maintenance despite having a higher income but also higher expenses.

In relation to parenting, the court ordered that X live with the mother according to his wishes, and that Y and Z also live with the mother. The father was permitted to have communication with Y and Z via email up to three times per week, with specific restrictions on discussing X or the mother, and prohibitions against denigrating the mother or X. Both parents were restrained from discussing the proceedings or denigrating each other in the presence or hearing of the children. The court also made orders regarding the father's ability to contact the school of Y and Z and attend school events, with strict conditions to avoid interaction with the mother and to comply with school requests. For spousal maintenance, the court ordered the father to pay the mother $100 per week, commencing from 21 December 2020. The parties were also ordered to enrol in a post-separation program and the mother was to continue attending psychological treatment. The Independent Children's Lawyer was granted leave to relist the matter in case of non-compliance and to provide relevant documents to X's treating psychologist and the single expert. The court noted that further consideration of interim parenting orders might be necessary after the release of the single expert report.

Orders