Morse & Duarte

The case of *Morse & Duarte* involved proceedings before Le Poer Trench J in the Family Court of Australia. The dispute concerned parenting arrangements for three children and the adjustment of property interests between the parents. The children were currently residing with the father following their removal from the mother's care by the Department of Family and Community Services. The father also sought a determination regarding a property held by the mother and her new partner, alleging it was held on trust for himself and the mother, and sought an adjustment of property interests under section 79 of the *Family Law Act 1975* (Cth).

The court was required to determine several key legal issues. Firstly, it had to assess the standard of proof for establishing an unacceptable risk to the children, particularly in light of findings that the mother's partner had sexually assaulted two individuals, one of whom was a child, and that the mother would be unable to protect the children from this risk. Secondly, the court considered whether an adverse inference could be drawn from the mother and her partner's failure to attend interviews with the Family Consultant, applying the principles of *Jones v Dunkel*. Thirdly, the court had to ascertain its jurisdiction, including under cross-vesting legislation, to determine the beneficial interest in a property and whether a resulting or constructive trust was established, and whether the defence of laches applied. Finally, the court was tasked with determining the appropriate adjustment of property interests between the parties, considering their contributions during the marriage and post-separation, and addressing the notional property of legal fees paid.

In relation to parenting, the court found an unacceptable risk to the children posed by the mother's partner and that the mother would not be able to protect them. Consequently, orders were made for the children to live with the father and for him to have sole parental responsibility. The mother was granted supervised time with the children, with strict conditions regarding contact with her partner and other matters. The court also determined that a property purchased with matrimonial funds was held on trust for the father and mother as tenants in common in equal shares, establishing both a resulting and constructive trust, and that the father had the right to lodge a caveat. In the property adjustment, after adding back legal fees as notional property and considering contributions, the father was awarded 67.7% of the net assets, including a superannuation splitting order. The court also clarified that an adverse inference could not be drawn from the failure to attend interviews with the Family Consultant.