FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARRISON & MARRISON | [2020] FCCA 1261 |
| Catchwords: FAMILY LAW – Abridgment – sole use and occupancy – where parties in long relationship – where parties each have affair or form new relationship – where parties separate under one roof – where, without notice, respondent introduces new partner to home – allegations of significant family disputes – where applicant effectively evicted from home – applicable principles – orders made for sole use and occupancy, children to live with mother and spend time with father, change over, modes of communication, non-denigration, participation in education, drug screening, conciliation conference, family report and final hearing – liberty reserved to the parties to apply on reasonable notice for orders for sale of property. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 60I, 61DA, 62B, 62G, 65D, 65DA, 65DAA, 68B, 68P, 68Q, 114 |
| Cases cited: Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MS MARRISON |
| Respondent: | MR MARRISON |
| File Number: | MLC 4329 of 2020 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 18 May 2020 |
| Date of Last Submission: | 18 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 21 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.C. Stanley |
| Solicitors for the Applicant: | Marcou & Associates |
| Solicitor advocate for the Respondent: | Ms E. Rothschild |
| Solicitors for the Respondent: | Fogarty, Oliver & Rothschild |
THE COURT ORDERS THAT:
The time for hearing this application be abridged.
The provisions of s 60I of the Family Law Act 1975 (Cth) (Act) be dispensed with.
Parenting orders
Until further order, the children X, born in 2005, and Y, born in 2010 (the children), live with the applicant mother.
Until further order, the children spend time with the respondent father as follows:
(a)each alternate weekend, from the conclusion of school on Friday (or 3:30 p.m., whichever be the earlier) until the commencement of school on Monday (or 9:00 a.m., whichever be the earlier), commencing on Friday, 29 May 2020;
(b)each Wednesday, from the conclusion of school (or 3:30 p.m., whichever be the earlier), until the commencement of school on Thursday (or 9:00 a.m., whichever be the earlier), commencing on Wednesday, 3 June 2020;
(c)at such further and other times as the parties may agree in writing.
Changeover occur at the children’s school where possible, and if not…
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- AGLC
- MARRISON & MARRISON [2020] FCCA 1261
- Case
- [2020] FCCA 1261
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues, including the abridgment of the time for hearing the application and whether to dispense with the provisions of s 60I of the *Family Law Act 1975* (Cth). Crucially, the court had to consider the appropriate parenting orders for the children, including their living arrangements and time spent with each parent, as well as orders concerning communication between the parties and with the children. The court also had to address the issue of sole use and occupancy of the former matrimonial home and the potential for future orders for its sale.
Judge A. Kelly applied established principles of family law, particularly concerning the best interests of the children and the need for stable living arrangements. The court made detailed parenting orders, granting the applicant mother sole use and occupancy of the former matrimonial home until further order, with the respondent father to vacate by a specified date. The orders also stipulated specific time arrangements for the children with the father, outlined communication protocols between the parents, and included provisions for drug screening, a conciliation conference, and the preparation of a Family Report. The court also reserved liberty to the parties to apply on reasonable notice for orders for the sale of the property.
Orders
Orders of the court
1.
The time for hearing this application be abridged.
2.
The provisions of s 60I of the Family Law Act 1975 (Cth) (Act) be dispensed with.
Parenting orders
3.
Until further order, the children X, born in 2005, and Y, born in 2010 (the children), live with the applicant mother.
4.
Until further order, the children spend time with the respondent father as follows:
(a) each alternate weekend, from the conclusion of school on Friday (or 3:30 p.m., whichever be the earlier) until the commencement of school on Monday (or 9:00 a.m., whichever be the earlier), commencing on Friday, 29 May 2020;
(b) each Wednesday, from the conclusion of school (or 3:30 p.m., whichever be the earlier), until the commencement of school on Thursday (or 9:00 a.m., whichever be the earlier), commencing on Wednesday, 3 June 2020;
(c) at such further and other times as the parties may agree in writing.
5.
Changeover occur at the children’s school where possible, and if not at the school, then at McDonald’s restaurant situate at the corner of A Street and B Street, Suburb C.
6.
The parties be at liberty to communicate with each other only as follows:
(a) in writing, including by text message, WhatsApp, an email or other parenting application in relation to non-urgent matters, including changeover; and
(b) in urgent or emergency situations, by telephone.
7.
Each of the parties have reasonable communication with the children by telephone, email, SMS text, or other electronic means (FaceTime, WhatsApp, Skype) during such times as the children are in the care of the other parent.
8.
The children be at liberty to communicate with either parent in accordance with their wishes and each of the parties ensure they facilitate the children in contacting the other parent including that the children should have strict privacy during such communications.
9.
The parties keep the other advised of their respective current address; mobile telephone number and email address and advise the other of any changes within seven days of such change.
10.
Pursuant to s 68B(1) of the Act, the parties and each of them whether by themselves, their servants or agents, or howsoever otherwise be restrained from:
(a) administering any form of physical discipline or violence on the children;
(b) abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the children or from permitting any other person to do so;
(c) discussing these proceedings or any related proceedings which may be pending in a state or other court or in the presence or hearing of the children or from permitting any other person to do so.
11.
The parties are free to be fully involved in the children’s education and are each entitled to communicate directly with the children’s primary and secondary education providers and are permitted to attend any school or extracurricular activities to which a parent would normally be invited to attend, including but not limited to parent-teacher interviews, concerts, carnivals and sporting events, and to receive copies of all school reports, school newsletters and notices and school photographs (at their own expense).
12.
Each party ensure that they take the children to any extracurricular activity that the children may engage in from time to time when the children are in their care.
13.
Pursuant to s 68P(2)(a) of the Act, to the extent that this order may be inconsistent with any family violence intervention order made by a Magistrates Court, this order prevails over any such Magistrates Court order and operates according to its terms and any such intervention order is invalid by operation of s 68Q(1) of the Act.
14.
Pursuant to ss 62B and 65DA of the Act, the particulars of the obligations these orders create, and the particulars of the consequences that may follow if a person contravenes these orders are set out in attachment A (Attachment A) and these particulars are included in these orders.
Drug screening
15.
Within 30 days hereof the parties undergo hair follicle testing at a recognised laboratory (in accordance with the protocol being attachment B hereto (Attachment B)) at their own expense and that for the purpose of same the parties be and are hereby prohibited from cutting, colouring or in interfering with their hair (so as to influence the hair follicle testing results) prior to the hair follicle test.
16.
The results of the Testing, on each occasion, be forwarded – as soon as possible – to the solicitors for the other party.
Sole use and occupancy
17.
Subject to paragraphs 18-19 of this Order, until further order, the applicant mother have sole use and occupancy of the former matrimonial home situate at D Street, Suburb E, in the State of Victoria (the property).
18.
Paragraph 17 of this Order shall become operative, and the respondent father shall vacate the property with effect from midday, Wednesday, 20 May 2020.
19.
Until further order, the applicant wife shall be solely responsible for all rates and outgoings respecting the property including all loan repayments secured by mortgage thereon.
20.
The parties be permitted to apply on reasonable notice for an interim hearing upon the question whether there should be an order for the sale of the property.
Conciliation conference
21.
The parties (and, if represented, their legal representatives) attend a Conciliation Conference with a Registrar of the Federal Circuit Court of Australia at the Melbourne Registry on Thursday, 3 September 2020 at 9:15am.
22.
The parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the nominated organisation, at least 7 days before the conciliation conference, copies of:
(a) an outline of case document in the form set out below in the trial directions;
(b) a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;
(c) a copy of the actual terms of orders required to give effect to their settlement proposal; and
(d) written confirmation by each party or their solicitor that:
i. all relevant documents have been exchanged between the parties; and
ii. the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.
Family report
23.
Pursuant to s.62G(2) of the Family Law Act 1975 (Cth), the parties and the children attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report (the Report) to be given to the Court not later than 21 January 2021.
24.
The Report deal with the following matters:
(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b) the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c) the likely effect on the children if the Court were to make orders in terms of the father’s and the mother’s proposed orders;
(d) any other matters that the Family Consultant considers important to the welfare or best interests of the children.
25.
The parties send copies of all of their court documents to the Family Consultant within 7 days of being requested to do so by the Family Consultant.
26.
If a party is not represented by a lawyer, then within 7 days of being notified that a Family Consultant has been appointed to prepare the Report, each party deliver to the Family Consultant copies of the following documents:
(a) all relevant applications or responses filed by, or on his or her behalf, in the proceeding;
(b) all relevant affidavits filed by, or on his or her behalf, in the proceeding; and
(c) any family violence intervention or restraining orders currently in force.
27.
For the purpose of completing the Report, the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.
28.
The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.
29.
If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyer to) notify the relevant Family Consultant of his or her need to attend Court no less than 7 days prior to the Final Hearing.
30.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceeding.
31.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceeding relate:
(a) a Children’s Court;
(b) a child protection authority;
(c) a State or Territory legal aid authority; and
(d) a convener of any legal dispute resolution conference.
32.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
Mention
33.
The matter be adjourned for Mention at 10.00am on Monday, 1 February 2021 before Judge A. Kelly in the Federal Circuit Court of Australia at Melbourne.
34.
No party may rely upon any affidavit that has been filed less than seven (7) days before any Mention Hearing.
Final Hearing:
35.
The matter be fixed for Final Hearing at 10.00am on 21 April 2021 in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 1 day.
36.
The following directions are made respecting discovery and use of documents at trial:
(a) no later than four months before the trial date, the parties are to confer and identify all documents upon which they propose to adduce in evidence at trial (Documents);
(b) no later than two months before the trial date, the applicant shall prepare, serve and file an indexed paginated folder of the Documents arranged in chronological order;
(c) no Documents (including any valuations, family report or other expert reports) are to be attached to any affidavit, but may only be referred to in an affidavit by page number and volume (if necessary), from the folder(s) of Documents;
(d) save with leave of the Court, no document identified pursuant to paragraph 36(a) of this Order may be relied upon or adduced in evidence at trial.
37.
Each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief) and further:
(a) the applicant electronically file and serve any affidavits to be relied upon at the final hearing not later than 28 days prior to the hearing;
(b) the respondent electronically file and serve any affidavits to be relied upon at the final hearing not later than 21 days prior to the hearing.
38.
Other than as provided in this Order, no party may file or rely upon any further evidence without leave of the court.
39.
The evidence in chief of each party and any witness be by way of affidavit as provided by paragraphs 37 – 38 of this order.
40.
Not later than one month prior to the final hearing all parties do electronically file and serve an Outline of Case Document (not exceeding 12 pages) including the following:
CHILDREN
(a) a list of the material relied upon;
(b) a brief chronology listing significant events;
(c) a list of the significant factual issues requiring determination;
(d) a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (s 60CC factors);
(e) a list of contentions relevant to the operation of s 65DAA;
(f) a list of any other contentions relevant to the decision; and
(g) the actual orders sought.
PROPERTY
(h) a list of the material relied upon;
(i) a brief chronology listing significant events;
(j) a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;
(k) main contentions on disputes as to:
i. inclusion of items in the pool; and
ii. the value of items where the value is in dispute;
(l) list of contributions claimed or contended for and the percentage assessment on contributions contended for;
(m) list of other factors relied upon (s 75(2) factors) and percentage adjustment contended for;
(n) other contentions relevant to determining a ‘just and equitable’ division of property; the actual orders sought.
41.
In default of compliance with the obligations in any paragraph of this Order, either party may apply to the Chambers of Judge A. Kelly for the matter to be listed for mention.
42.
The costs of this application be reserved.
AND THE COURT NOTES:
A. The court has queried whether it may be appropriate for an interim hearing on the question whether an order should be made for the sale of the property.
B. The mother has responded to the court’s invitation, submitting that an order for sale may be appropriate.
C. The father has responded to the court’s invitation, submitting that he would prefer to explore the option of purchasing the property and whether he can secure the means of doing so.
D. At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
E. Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
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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