LORTON & LORTON - [2021] FCCA 42

FEDERAL CIRCUIT COURT OF AUSTRALIA

LORTON & LORTON

[2021] FCCA 42

Catchwords:
FAMILY LAW – Parenting – interim parenting – where Applicant seeks that the child live with her and spend alternate weekends with Respondent – where Respondent seeks equal time on a week about basis – where Respondent asserts risk to child based on Applicant’s mental health issues – where Court finds that such risk could exist without treatment – where Court finds that such risk can be mitigated by appropriate orders – where orders made for equal time.

FAMILY LAW – Property – spousal maintenance – where Applicant demonstrates a need – where Respondent demonstrates an inability to pay – where no orders made for interim spousal maintenance.

FAMILY LAW – Property – interim property orders – where Applicant seeks sole occupation of former matrimonial home – where Applicant seeks Respondent pay all outgoings and mortgage for former matrimonial home – where Respondent opposes both orders – where no orders made for sole occupation of former matrimonial home by Applicant – where no orders made in relation to the payment of outgoings and mortgage by the Respondent.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65D, 65DAA, 72, 74, 75.

Cases cited:

In the Marriage of Redman (1987) 11 Fam LR 411
M & M (1988) FLC 91-973
In the Marriage of Bevan (1993) 120 FLR 283
A & A & The Child Representative (1998) 22 FamLR 756
Napier & Hepburn (2006) FLC 93-303
Goode & Goode (2006) FLC 93-286
Johnson & Page (2007) FLC 93-344
Maroney & Maroney [2009] FamCAFC 45
Marvel & Marvel (2010) 240 FLR 367
SS & AH [2010] FamCAFC 13
MRR & GR [2010] HCA 240
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Grella &Jamieson [2017] FamCAFC 21

Applicant:

MS LORTON

Respondent:

MR LORTON

File Number:

SYC 7623 of 2019

Judgment of:

Judge Morley

Hearing date:

16 July 2020

Date of Last Submission:

7 August 2020

Delivered at:

Sydney

Delivered on:

10 February 2021

REPRESENTATION

Solicitors for the Applicant:

Ms Winning of Barkus Doolan

Counsel for the Respondent:

Ms Coulton

Solicitors for the Respondent:

I & J Law

ORDERS

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

That the parties have equal shared parental responsibility for their child X born 2012 (“X”).
That X live with his parents on a week about basis throughout the year except for the Christmas school holidays, with changeovers occurring at the start of school (or 8:00AM if not a school day) on Mondays.
That during the Christmas school holidays at the end of Term 4:
a)X live with his Father for the first half of those holidays that commence in an even numbered year and the second half of those holidays that commence in an odd numbered year; and
b)X live with his Mother for the first half of those holidays that commence in an odd numbered year and the second half of those holidays that commence in an even numbered…

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 LORTON & LORTON

Details

AGLC: LORTON & LORTON [2021] FCCA 42
Case: [2021] FCCA 42
Decision Date: 10 February 2021

CaseChat Overview and Summary

In Lorton & Lorton, heard before Judge Morley, the applicant mother sought orders for the child to live with her and spend alternate weekends with the respondent father. The respondent father sought equal time on a week-about basis, asserting a risk to the child due to the applicant's mental health issues. The court also considered interim property matters, including the applicant's request for sole occupation of the former matrimonial home and for the respondent to pay all outgoings and the mortgage, and interim spousal maintenance.

The court was required to determine the appropriate interim parenting arrangements for the child, specifically addressing the respondent's concerns about the applicant's mental health and whether such risks could be mitigated by court orders. Additionally, the court had to decide on interim spousal maintenance, considering the applicant's demonstrated need and the respondent's asserted inability to pay. The court also needed to determine whether to grant the applicant sole occupation of the former matrimonial home and whether the respondent should be ordered to pay the mortgage and outgoings.

Regarding parenting, the court found that while a risk to the child could exist due to the applicant's mental health issues without treatment, this risk could be mitigated by appropriate orders. Consequently, the court made orders for equal shared parental responsibility and for the child to live with each parent on a week-about basis, with specific provisions for Christmas holidays and the father's travel. The court dismissed all outstanding interim applications. In relation to property, the court made no orders for interim spousal maintenance, finding the respondent unable to pay. Furthermore, no orders were made for the applicant's sole occupation of the former matrimonial home or for the respondent to pay the mortgage and outgoings.

Orders

Orders of the court

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

That the parties have equal shared parental responsibility for their child X born 2012 (“X”).

That X live with his parents on a week about basis throughout the year except for the Christmas school holidays, with changeovers occurring at the start of school (or 8:00AM if not a school day) on Mondays.

That during the Christmas school holidays at the end of Term 4:

a) X live with his Father for the first half of those holidays that commence in an even numbered year and the second half of those holidays that commence in an odd numbered year; and

b) X live with his Mother for the first half of those holidays that commence in an odd numbered year and the second half of those holidays that commence in an even numbered year.

That notwithstanding any other order X shall live with his Mother from 3:00PM on 25 December until 6:00PM on 26 December in even numbered years and X shall live with his Father from 3:00PM on 25 December until 6:00PM on 26 December in odd numbered years.

That during any period of time that the Father is unable to himself care for X due to being required to be outside the Commonwealth of Australia for business then order 2 shall be suspended and X shall live with his Mother and then the regime under order 2 shall resume upon the Father’s return as if it had not been suspended.

That any changeovers that do not occur at X’s school shall occur at the “Location A” referred to in the Father’s Amended Response.

That the Wife has exclusive occupation as between herself and the Husband of the real property at B Street, Suburb C NSW.

That all outstanding interim applications are 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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