Federal Circuit and Family Court of Australia
(DIVISION 2)
Mullins & Lien [2022] FedCFamC2F 1062

File number(s): ADC 1430 of 2019

Judgment of: JUDGE BROWN

Date of judgment: 17 August 2022

Catchwords:
FAMILY LAW – Children – parenting arrangements for two children aged 8 and 6 – where the parties have no capacity to co-parenting and solve problems – whether a change in arrangements would be in the children’s best interests –father seeks a shared care arrangement – allegations of family violence perpetrated by the father – where the children have been exposed to family violence – coercive and controlling behaviour – assessment of risk

FAMILY LAW – Property – property settlement – marriage of 7 years – modest asset pool – assessment of contributions – superannuation – splitting order under s 90XT of the Family Law Act 1975 (Cth) – considerations of just and equitable

Legislation:
Evidence Act1995 (Cth) ss 140, 144

Family Law Act 1975 (Cth), Part VII, VIII, VIIIB, ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65DAA, 65DAC, 65DAE, 68B, 68LA, 75, 79, 90XC, 90XT, 102NA, 114

Family Law (Superannuation) Regulations 2001, Div 2, p 6

Federal Circuit & Family Court of Australia (Division 2) (Family Law) Rules 2021 r 6.06

Superannuation Industry (Supervision) Regulations 1994

Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth).

Cases cited:
Astor & Astor [2007] FamCA 355

B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676

Bartel & Schmucker (No 3) [2012] FamCA 1094

Bevan & Bevan [2013] FamCAFC 116

Black & Kellner (1992) FLC 92-287

Briese & Briese (1986) FLC 91-713

Clauson & Clauson (1995) FLC92-595

Clauson v Clauson (1995) 18 Fam LR 693

C & C (2005) 33 Fam LR 414

Eaby & Speelman (2015) FamCAFC 104

Ferguson & Ferguson (1978) FLC 90-500

Ferraro v Ferraro (1992) 16 Fam LR 1

Fox v Percy (2003) 214 CLR 118

H v W (1995) 126 Fam LR 788

Hickey & Hickey (2003) 30 Fam LR 355

Horrigan & Horrigan [2020] FamCAFC 25

In the Marriage of JG & BG (1994) 18 Fam LR 255

In the Marriageof Patsalou (1994) 18 Fam LR 426

Mullins & Lien [2020] FCCA 3176

Jurchenko & Foster (2014) 51 Fam LR 588

Lee Steere & Lee Steere (1985) FLC 91-626

SHL & EHL [2006] FamCA 1287

L & L [2003] FamCA 40

Luciano & Luciano [2000] FamCA 401

Magas & Magas (1980) FLC 90-885

Mazorski v Albright (2007) 37 Fam LR 518

MRR v GR (2010) 240 CLR 461

Pierce & Pierce (1999) FLC 92-844

R & R: Children’s Wishes (2000) 25 Fam LR 712

Re: K (1994) FLC 92-461 at 80,774

Russell & Russell (1999) 25 Fam LR 629

Russell & Russell and Anor [2009] FamCA 28

Stanford v Stanford (2012) 247 CLR 108

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Waters & Jurek (1995) 20 Fam LR 190

Watson & Ling [2013] FamCA 57

Weir & Weir (1993) FLC 92-338

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 Mullins & Lien

Details

AGLC: Mullins & Lien [2022] FedCFamC2F 1062
Case: [2022] FedCFamC2F 1062
Decision Date

CaseChat Overview and Summary

Mullins and Lien involved a contentious finalisation of parenting arrangements and property settlement between the parties. The father sought a shared care arrangement for the parties' two young children, while the mother sought sole parental responsibility. The court found that the father's controlling and coercive behaviour towards the mother and his inability to restrain himself from disparaging and hectoring her made a shared care arrangement unworkable. The court was also concerned that the father's negative attitude towards the mother would expose the children to psychological harm. The court determined that the mother should have sole parental responsibility for the children, with the father having specific visitation rights. In respect of the property settlement, the court was faced with the dilemma of whether to force the sale of the former family home, which the father had owned prior to the marriage and which he wished to retain. The court determined that it would be fundamentally unfair to the mother to deprive her of her proper financial entitlements. The court ordered the father to pay the mother a cash sum of $80,146.31 within 12 months, with interest accruing after 30 days. If the payment was not made by the due date, the former family home would be sold, and the mother would be paid 40% of the net proceeds. The court also ordered that the father be responsible for all outgoings on the property and that the mother could apply for its sale if he defaulted.

Orders