Meadows and Meadows (No. 3) - [2020] FamCA 736

FAMILY COURT OF AUSTRALIA

MEADOWS & MEADOWS (NO. 3)

[2020] FamCA 736

FAMILY LAW – CHILDREN – Child related proceedings – where final parenting orders made in July 2019 – where the mother seeks a change of venue – where the mother seeks make-up time for time missed – where the mother seeks enforcement of orders for ongoing time – where the mother seeks the father disclose protection orders in relation to any person living in the home with the child – where the mother seeks a recovery order lie in the Registry if time is to recommence – where the mother seeks a stay or variation of existing final sole parental responsibility orders – where the mother has failed to comply with final orders of 2019 – where the mother has not enabled an initial period of supervised changeover to occur – where the mother cannot commence unsupervised changeovers with the child before attending supervised changeovers as per the final orders – where the child lives with the father – where there is no change in circumstances – mother’s applications dismissed.

FAMILY LAW – PROPERTY – where final orders made in 2019 impel the father to pay the mother $200,000 by way of property adjustment – where the mother may refuse to receive the payment – where the mother has placed a caveat over the former matrimonial home such that the father cannot deal with the property and provide the mother with her entitlement – order for caveat to be removed – if mother does not accept monies to be held on trust in a bank account in joint names for the wife when she chooses to access it.

Family Law Act 1975 (Cth)

King & Finneran [2001] FamCA 344
Meadows & Meadows (No. 2) [2019] FamCA 491
Meadows & Meadows (No. 4) [2019] FamCA 745
Meadows & Meadows (No. 2) [2020] FamCA 325
Marsden & Winch (2009) 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Ms Meadows

RESPONDENT:

Mr Meadows

FILE NUMBER:

PAC

3509

2013

DATE DELIVERED:

9 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

6 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Self-Represented Litigant
COUNSEL FOR THE RESPONDENT:	Self-Represented Litigant

Orders

The wife’s response to the husband’s application that the caveat over the property at O Street, Suburb P not be removed is dismissed.
If the wife fails to sign and return any document provided to her by the husband within 7 days of him sending same to her to cause a discharge of the caveat lodged over the property at O Street, Suburb P a Registrar of the Family Court of Australia in Sydney is appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all documents in the name of the wife and do such things necessary to cause the discharge of same.
The wife is injuncted and restrained from lodging any further caveats over the title of the…

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 Meadows and Meadows (No. 3)

Details

AGLC: Meadows and Meadows (No. 3) [2020] FamCA 736
Case: [2020] FamCA 736
Decision Date: 9 September 2020

CaseChat Overview and Summary

In the Family Court of Australia, Henderson J considered applications by the mother concerning final parenting orders made in July 2019 and property settlement orders also made in 2019. The mother sought various orders including a change of venue, make-up time for missed periods with the child, enforcement of ongoing time, disclosure of protection orders concerning individuals in the father's household, a recovery order, and a stay or variation of existing sole parental responsibility orders. The father sought the removal of a caveat lodged by the mother over the former matrimonial home, which prevented him from dealing with the property to satisfy his property settlement obligation.

The court was required to determine whether the mother's applications for changes to the parenting orders should be granted, particularly in light of her alleged failure to comply with the existing final orders, including the requirement for supervised changeovers before unsupervised ones could commence. The court also had to consider the mother's actions in placing a caveat on the former matrimonial home, which obstructed the father's ability to comply with the property settlement order requiring him to pay the mother $200,000.

Regarding the parenting matters, Henderson J found that there had been no change in circumstances to warrant a variation of the final orders. The mother's applications were dismissed, including her requests for make-up time, enforcement of time, a further psychological assessment, disclosure of protection orders, and a recovery order. Her applications to re-open the parenting proceedings, stay or vary the sole parental responsibility orders, and change the venue were also dismissed. On the property front, the court ordered the removal of the caveat lodged by the mother over the property. If the mother failed to provide the necessary documentation for its discharge within seven days, a Registrar was appointed to execute the documents in her name. The mother was also restrained from lodging further caveats. The father was ordered to pay the $200,000 to the mother within 60 days, with provisions for the funds to be held in trust in a joint account if the mother refused to accept the payment directly.

Orders

Orders of the court

The wife’s response to the husband’s application that the caveat over the property at O Street, Suburb P not be removed is dismissed.

If the wife fails to sign and return any document provided to her by the husband within 7 days of him sending same to her to cause a discharge of the caveat lodged over the property at O Street, Suburb P a Registrar of the Family Court of Australia in Sydney is appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all documents in the name of the wife and do such things necessary to cause the discharge of same.

The wife is injuncted and restrained from lodging any further caveats over the title of the property referred to in Order 1.

The husband has leave to serve a copy of these Orders on NSW Land Registry Services.

The husband is to comply with order 19 of Justice Baumann’s Orders of 30 July 2019 and pay the wife $200,000 within 60 days of the date of delivery of these orders and if he is unable so to do the machinery provisions in relation to payment of monies to the wife will apply being orders 25 and 26.

In the event the wife will not accept monies to be paid to her in accordance with order 5 herein I direct the husband place those monies into a bank account of his choosing in trust for he and the wife with both to sign to access or deal with the account.

Thereafter the husband is to notify the wife in writing of the bank chosen in accordance with order 6 herein and the account details. The husband is to forthwith comply with any written request by the wife to withdraw those funds and/or pay as she directs.

Any interest accrued on the funds so deposited is to be equally shared between the parties with such calculation to be determined by the husband.

Any costs associated with the husband complying with order 6 herein is to be borne by the wife and deducted from monies due and payable to the wife pursuant to His Honours orders of 30 July 2019 and as calculated by the husband.

10.

The mother’s application for make-up time, both in relation to regular weekend time and on Mother’s Day 2020 is dismissed.

11.

The mother’s application for enforcement of regular time is dismissed.

12.

The father agrees to obtain an optometrist’s report for his daughter and forward that report to the mother upon receipt and he is to so do within 14 days of the date of delivery of these orders.

13.

The mother’s application that the child be the subject of a further psychological assessment and report is dismissed.

14.

The mother’s application for disclosure of any AVOs, DVOs or any other protection orders and the like in relation to the father or anyone in the father’s household is dismissed.

15.

The mother’s application for a recovery order to issue and to lie in the Registry is dismissed.

16.

The mother’s application to re-open the parenting proceedings is dismissed as is the mother’s application to stay or vary the sole parental responsibility orders made by Justice Baumann on 30 July 2019.

17.

The mother’s change of venue application is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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