FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McManus & Bracken (No 2) [2023] FedCFamC2F 640

File number(s): MLC 11271 of 2020

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 26 May 2023

Catchwords: FAMILY LAW – final parenting and property orders – whether the children’s living arrangements should be equal time or substantial and significant time – where one parent has involved the children in the proceedings – whether the property pool should be divided equally or 70/30 – whether there should be adjustments based on section 79(4) contributions – whether there should be adjustments on section 75(2) factors – equal contribution and 5% section 75(2) adjustment – jointly contributed pool divided 45/55 – final hearing heard over 5 days

Legislation:
Evidence Act 1995 (Cth) ss 140, 144

Family Law Act 1978 (Cth) ss 4, 4AB, 60CA, 60CC, 60CF, 60CG, 61DA, 65DAC, 75, 79, 80

Cases cited:
Adamson & Adamson (2014) FLC 93-622

Blass & Blass (2022) FLC 94-085

Clauson & Clauson (1995) FLC 92-595

Fox v Percy (2003) 214 CLR 118

Hickey and Hickey and the Attorney-General [2003]

Hobson v Hobson (2020) 61 Fam LR 557, [2020] FamCAFC 251

Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932

Lovine & Connor and Anor (2012) FLC 93-515

McManus & Bracken [2021] FedCFamC2F 206

Phipson & Phipson [2009] FamCAFC 28

Rosati v Rosati (1998) FLC 92-804

Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518

Townsend & Townsend (1995) FLC 92-569

Varnham & Moses (2021) FLC 94-007

Wallis & Manning (2017) FLC 93-759

Wayne & Wayne [2010] FamCAFC 33

Division: Division 2 Family Law

Number of paragraphs: 263

Date of last submission/s: 8 December 2022 (exhibit F19)

Date of hearing: 3-4 February 2022, 10 February 2022, 18 February 2022, 5 May 2022.

Place: Melbourne

Counsel for the Applicant: Litigant in Person

Counsel for the Respondent: Ms E. Johnson

Solicitor for the Respondent: Fitzroy Legal Service Inc.
ORDERS

MLC 11271 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MCMANUS

Applicant

AND:
MS BRACKEN

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

26 MAY 2023

THE COURT ORDERS THAT:
1.All previous parenting and property orders be discharged.

Parental responsibility
2.The parties have equal shared parental responsibility for the children of the relationship, X born in 2013, and Y born in 2014 (“the children”).

Live with and Spend time
3.The children live with the Mother.
4.The children spend time and communicate with the Father as follows:
(a)During school terms in week one of a two-week cycle, from the conclusion of school on Friday (or 3:00pm if a non-school day) to the commencement of school on Monday (or 9:00am if a non-school day) and in the same cycle or rotation as in place pursuant to interim orders;
(b)During school terms in week two of a two-week cycle, from the conclusion of school on Wednesday (or 3:00pm if a non-school day) to the commencement of school on Friday (or 9:00am if a non-school day) and…

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 McManus & Bracken (No 2)

Details

AGLC: McManus & Bracken (No 2) [2023] FedCFamC2F 640
Case: [2023] FedCFamC2F 640
Decision Date

CaseChat Overview and Summary

The parties, Mr McManus and Ms Bracken, were married in 2012 and separated in March 2020. They have two children, X born in 2013 and Y born in 2014. The proceedings concern parenting arrangements and the division of property. The Husband seeks equal shared parenting responsibility and a gradual increase in his time with the children. The Wife seeks the children to live with her and spend alternate weekends with the Husband. The property pool consists of approximately $935,000 plus $354,000 in superannuation. The Husband seeks a 50/50 division of the jointly contributed property pool, while the Wife seeks a 70/30 division in her favor. The court considered the primary and additional considerations under section 60CC of the Family Law Act 1975 (Cth), as well as the principles of section 79(4) and section 75(2) for property division. The court found that the Husband had attempted to influence the children in the proceedings, and that the Wife's evidence was not always reliable. The court ordered equal shared parental responsibility for the children, with the children living with the Mother and spending time with the Father on a specified schedule. The court also ordered a division of the jointly contributed property pool at a ratio of 45/55 in favor of the Wife, with a section 75(2) adjustment of 5% or $40,500, creating a disparity of $81,000 in the Wife's favor. The court further ordered that the Wife be permitted to take the children to see a child psychologist, with the cost of consultations shared equally by the parents.

Orders