MULLAN & PRESTON - [2019] FCCA 1129

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULLAN & PRESTON

[2019] FCCA 1129

Catchwords:
FAMILY LAW – Parenting – dispute over spend time with arrangements of father with 7½ year old boy – held in child’s best interests to spend 5 nights a fortnight with father during school terms and half school holidays.

FAMILY LAW – De facto – dispute over length of de facto relationship – Held de facto relationship commenced in … 2011 and concluded in March 2013.

FAMILY LAW – Property – dispute over property division – Held two pool approach required with mother to receive 45% of the relevant property pool acquired between parties.

Legislation:

Family Law Act 1975, ss.4AA, 60CA, 61DA, 65DAA, 90RD, 90SM, 90SF, Pt VII, Pt VIIIAB

Cases cited:

Anson & Meek [2017] FamCAFC 257
Delamarre & Asprey [2014] FamCAFC 218
Hardie & Capris [2010] FamCA 1046
Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143
Holland & Holland (2017) FLC 93-798
Jonah & White (2012) 48 FamLR 562
Mazorski v Albright (2007) 37 Fam LR
Moose & Moose [2008] FamCAFC 108
MRR v GR (2010) 263 ALR
Norbis v Norbis (1986)161 CLR 513
Roy & Sturgeon (1986) 11 FLR
S & B (No.2) (2004) 32 Fam LR 429
Sinclair & Whittaker (2013) FLC 93-550
Stanford v Stanford (2012) 293 ALR 70
Zaruba & Zaruba [2017] FamCAFC 91

Applicant:

MS MULLAN

Respondent:

MR PRESTON

File Number:

NCC 1851 of 2014

Judgment of:

Judge L. Turner

Hearing dates:

8 May 2017, 9 May 2017, 10 May 2017, 11 May 2017, 12 May 2017, 22 November 2017 and 1 June 2018

Date of Last Submission:

14 September 2018

Delivered at:

Brisbane

Delivered on:

8 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr Tregilgas

Solicitors for the Applicant:

Bale Boshev Lawyers

Counsel for the Respondent:

Mr Kelly

Solicitors for the Respondent:

Hunter Family Law Centre Pty Ltd

FINAL PARENTING ORDERS

All previous parenting orders and parenting plans are hereby discharged.
The child [X] born on … 2011 live with the mother.
The parties have equal shared parental responsibility for the child.
The parties have sole parental responsibility for making day-to-day decisions for the child when the child is in their respective care.
Unless otherwise agreed between the parties the father spend time with and communicate with the child as follows:-
(a)During school terms:-
i)Each alternate weekend from after school Friday (or 3.00pm if a non-school day) to before school (or 9.00am if a non-school day) Tuesday with such weekends to coincide with when the child’s cousin [A] is spending time with his father, the paternal uncle.
ii)In each other week from after school (or 3.00pm if a non-school day) Tuesday to before school (or 9.00am if a non-school day) Wednesday.
(b)In even numbered years for the first half of the Term 1, Term 2 and Term 3 school holidays from after school on the last day of term to 3.00pm on the second Sunday of the school holidays.
(c)In odd numbered…

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 MULLAN & PRESTON

Details

AGLC: MULLAN & PRESTON [2019] FCCA 1129
Case: [2019] FCCA 1129
Decision Date: 8 May 2019

CaseChat Overview and Summary

This matter concerned a dispute between Mullan and Preston regarding parenting arrangements for their seven-and-a-half-year-old son, the division of their property, and the determination of the length of their de facto relationship. The case was heard by L. Turner J.

The court was required to determine the best interests of the child in relation to spend time with arrangements, the commencement and conclusion dates of the parties' de facto relationship, and the appropriate division of the property pool acquired by the parties.

In relation to parenting, the court found it to be in the child's best interests to spend five nights a fortnight with his father during school terms and to spend half of the school holidays with him. The court determined that the de facto relationship commenced in 2011 and concluded in March 2013. Applying a two-pool approach to property division, the court ordered that the mother receive 45% of the relevant property pool acquired between the parties.

Orders