FAMILY LAW – CHILDREN – Parenting – Where breakdown of the father/child relationship – Where father /mother relationship poor and conflictual – Where child of mature years has strongly expressed wishes as to contact with father –Where consideration of the child’s best interests – Where not appropriated to make positive order for the child to spend time with the father.
FAMILY LAW – COSTS – Independent Children’s Lawyer’s costs – Where consideration of general principles – Where appropriate that order be made for parties to pay equally the Independent Children’s Lawyer’s costs.
FAMILY LAW – PROPERTY – Where separation some years before trial – Where post separation financial dealings between the parties and otherwise – Where evidence adduced lacked appropriate forensic clarity – Where court satisfied that husband has failed to be full and frank with the court as to his financial dealings – Where appropriate to make adjustive orders – Orders made for husband to pay to wife capital sum.
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79, 117
Robert Tricca & Associates (4, 5 and 6 October 2016)
Self-represented (11 and 26 October 2016)
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Mr Kenny
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
Legal Aid NSW Parramatta Family Law
Orders
Parenting:
That the mother have sole parental responsibility for the child A born … 2004.
That the child live with the mother.
That the father…
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
Lotta & Lotta [2017] FamCA 50
Case
[2017] FamCA 50
Decision Date
CaseChat Overview and Summary
In the matter of Lotta & Lotta, Foster J considered parenting, property, and costs disputes arising from the breakdown of a marriage. The parenting dispute concerned the relationship between the father and the child, A, which had deteriorated significantly. The child, being of mature years, had expressed strong wishes regarding contact with the father. The property dispute involved financial dealings between the parties that occurred some years after their separation, with the court finding a lack of forensic clarity in the evidence presented.
The court was required to determine the best interests of the child, A, in relation to contact with the father, and whether to make a positive order for the child to spend time with him. Additionally, the court had to consider the general principles for awarding costs, specifically in relation to the Independent Children’s Lawyer. Finally, the court needed to address the property settlement, including whether to make adjustive orders due to the husband's alleged failure to be full and frank with the court regarding his financial dealings.
Regarding parenting, Foster J determined that it was not appropriate to make a positive order for the child to spend time with the father, given the breakdown of their relationship and the child's expressed wishes. The orders made provided for the mother to have sole parental responsibility and for the child to live with her, while allowing for the father to send letters and gifts, and to receive information about the child's progress and attend school events under specific conditions. The court also made orders for communication and conduct between the parents to protect the child. In relation to costs, the court ordered that each party pay an equal contribution towards the Independent Children’s Lawyer’s costs. For the property dispute, the court found that the husband had not been full and frank in his financial disclosures and made an adjustive order requiring the husband to pay a capital sum of $496,000 to the wife.
Orders
Orders of the court
Parenting:
1.
That the mother have sole parental responsibility for the child A born … 2004.
2.
That the child live with the mother.
3.
That the father shall be at liberty to send letters and/or gifts to the child by forwarding those letters and/or gifts to the child at his home and the mother shall ensure that all letters and/or gifts that the father sends are passed onto the child.
4.
That in the event that the child expresses a wish to the mother to spend time with the father the mother shall do all things necessary to facilitate such time occurring.
5.
That the father shall be at liberty to obtain information from the child’s school in relation to the child’s progress and this order shall be sufficient authority for the father to do so.
6.
That the father shall be at liberty to attend any events at the school to which parents are ordinarily invited provided always that in the event that the father attends at the child’s school the father is restrained from approaching the child, subject to order (4) above, or the mother.
7.
That the mother shall notify the father of any hospitalisation or medical emergency involving the child as soon as is reasonably practicable and no later than 24 hours after the event and the father shall be at liberty to obtain such information from the hospital or medical provider as he may reasonably request and this order shall be sufficient authority for him to do so.
8.
That each parent shall keep the other informed of their residential address, telephone contact number (both landline and mobile) and email address and that they notify the other parent of any change to these details within 48 hours of such a change occurring,
9.
That each parent is restrained from denigrating the other parent or any member of their extended family or household in the hearing or presence of the child and shall not allow any other person to do so.
10.
That each parent is restrained from discussing the court proceedings within the presence or hearing of the child and shall not allow any other person other than a family consultant or the Independent Children’s Lawyer to do so.
11.
That each parent is restrained from showing the child any document related to these family law proceedings and shall not allow any other person to do so.
12.
That within two months from this date the father pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyers costs in the sum of $6,400.50.
13.
That within two months from this date the mother pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs in the sum of $6,400.50.
Property
14.
That within two months from this date the husband pay to the wife or as she may otherwise direct the husband in writing the sum of $496,000.
15.
Liberty to apply as to implementation or enforcement of the previous order.
16.
That otherwise all applications be dismissed and proceedings be removed from the pending cases list.
Note: The form of the order is subject to the entry of the order in the Court’s records.