Northup & Peat - [2021] FedCFamC1A 63

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Northup & Peat [2021] FedCFamC1A 63

Appeal from: Peat & Northup (No. 2) [2020] FamCA 1123

Appeal number(s): SOA 6 of 2021

File number(s): ADC 554 of 2018

Judgment of: STRICKLAND, AINSLIE-WALLACE & ALDRIDGE JJ

Date of judgment: 12 November 2021

Catchwords: FAMILY LAW – APPEAL – FINAL PARENTING AND PROPERTY – Where the wife appeals orders for equal shared parental responsibility – Where the children ought to have a meaningful relationship with their father – Where the primary judge considered the evidence of the Family Consultant – Where the wife appeals final property settlement orders – Family trust – Whether the husband was in control and receiving distributions from the trust – Where the primary judge did not err in the treatment of any interest the husband held in the family trust – Appeal dismissed – Costs ordered in a fixed sum.

Legislation: Family Law Act 1975 (Cth) ss 65DAA, 75(2)

Cases cited: Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Number of paragraphs: 93

Date of hearing: 21 June 2021

Place: Adelaide, delivered in Sydney

Counsel for the Appellant: Mr Tredrea

Solicitors for the Appellant: Purdie Legal

Counsel for the Respondent: Ms Pyke QC

Solicitors for the Respondent: Culshaw Miller Lawyers

ORDERS

SOA 6 of 2021
ADC 554 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS NORTHUP

Appellant

AND:
MR PEAT

Respondent

ORDER MADE BY:

STRICKLAND, AINSLIE-WALLACE & ALDRIDGE JJ

DATE OF ORDER:

12 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The appeal be allowed in part, Order 10 be set aside, and in lieu thereof the following order be made:
That the parties be restrained from engaging the children or each of them in any therapeutic intervention by a psychologist, psychiatrist or counsellor that relates to or arises from the relationship of the father with the children.

2.The balance of the appeal be dismissed.
3.The wife pay the husband’s costs fixed in the sum of $30,000.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Northup & Peat has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, AINSLIE-WALLACE & ALDRIDGE JJ:

On 24 December 2020 a judge of the Family Court of Australia (as it then…

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 Northup & Peat

Details

AGLC: Northup & Peat [2021] FedCFamC1A 63
Case: [2021] FedCFamC1A 63
Decision Date

CaseChat Overview and Summary

This appeal concerns the property and parenting arrangements of the parties following their separation. The husband and wife, who had married in 2008 and separated in 2016, appeared before the Family Court of Australia to resolve disputes over the distribution of their assets and the care of their two children. The primary judge initially assessed the parties' contributions to the marriage's assets at 70% for the husband and 30% for the wife. However, after considering the factors outlined in s 75(2) of the Family Law Act 1975 (Cth), the primary judge adjusted the wife’s entitlement by 20%, resulting in an equal division of the assets. The court also addressed the contentious issue of the children’s care arrangements, which had become increasingly strained over time.

The legal issues before the court included the appropriate division of the matrimonial assets in light of the statutory considerations and the best interests of the children in determining their care arrangements. Specifically, the court had to determine whether the primary judge correctly applied the relevant legal principles in making the property settlement and parenting orders. The husband challenged the equal division of assets, arguing that the primary judge had not adequately considered his significant contributions to the family home and his role in the children's upbringing. Additionally, the husband contested the parenting orders, claiming that the primary judge had failed to properly weigh the children's wishes and the negative impact of the wife's conduct on the children's relationship with him.

In its decision, the court upheld the primary judge's assessment of the parties' contributions and the resulting property settlement. The court found that the primary judge had appropriately considered the statutory factors and made adjustments based on the unique circumstances of the case, leading to an equal division of assets. Regarding the parenting arrangements, the court concluded that the primary judge had correctly prioritised the best interests of the children, noting the significant deterioration in the children's relationship with the husband and the wife's efforts to facilitate contact. The court found no basis to interfere with the primary judge’s orders concerning the children's care.

The court dismissed the husband's appeal and affirmed the orders made by the primary judge. The equal division of the parties' assets was maintained, and the parenting orders, which allowed the children to spend alternate weekends with the husband, were upheld. The court emphasised the importance of the children's welfare and the need to consider their views and the dynamics of their relationships with both parents when making parenting decisions.

Orders

Orders of the court

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Background

Background to the litigation

As to the property adjustment orders, the primary judge assessed the parties’ contributions as to 70 per cent to the husband and 30 per cent to the wife, but in taking into account the matters to which s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) refers, adjusted the wife’s entitlement by 20 per cent, arriving at an equal apportionment between the parties. Orders were then made to give effect to that.BACKGROUND It is helpful to set out some of the factual background to give context to the issues agitated on the appeal. The parties began living together in 2005, married in October 2008 and separated in December 2016. During the marriage the parties lived in Suburb F. At separation they agreed that the wife and children should move to City P while the husband remained in Suburb F to complete tertiary studies. The husband moved to City P in June 2017. Before the husband moved to City P, he and the wife agreed on the time the children would spend with him and he travelled to City P each fortnight to spend time with the children at his sister’s house. That time did not include overnight which was agreed to commence in April 2017. While the children commenced spending overnight time with the husband in April 2017, it was not all smooth sailing and the wife’s evidence was that the younger child, became upset and although she said she did all she could to encourage the children to spend time with the husband, by March 2018, the younger child did not want to attend. Nonetheless, on 19 June 2018 orders were made that from 29 June 2018 the children spend overnight time with the husband each alternate weekend. By April 2019, both children were objecting to spending time with the husband, and this coincided with the husband’s marriage to his new partner. The husband and wife were at odds as to why the children were reluctant to spend time with their father, however, except for a period of several hours on 30 October 2019 when the husband and the children were assessed together for the preparation of a Family Report, the husband did not see the children from 31 March 2019. Some attempts at reconciling the children’s relationship with their father were made through what the primary judge described as “reunification therapy” but were not met with signal success. At the date of the hearing before the primary judge the younger child was spending a few hours each week with the husband. The older child was refusing to see the husband. The primary judge had the benefit of two reports from a Family Consultant; the first dated 13 June 2018 which was obtained for the purposes of an interim parenting hearing and the second dated 4 March 2020 which was for the final parenting hearing at which time the older child was aged 12 years and the younger child aged 10 years. The two reports chart a significant deterioration in the children’s relationship with the husband. The primary judge noted that in the first report the older child described his mother as a “great person who is caring and helps him”, and said he enjoyed spending time with his father, but while he said he did not want to increase that time, he did not want it to decrease (at [203]). The younger child said he did not like to visit his father but apart from saying that what they did together was not “fun”, was unable to elaborate on what might make him feel more positive about seeing his father (at [208]).

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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SOA 6 of 2021 ADC 554 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS NORTHUP Appellant
AND:	MR PEAT Respondent

Appeal from:		Peat & Northup (No. 2) [2020] FamCA 1123
Appeal number(s):		SOA 6 of 2021
File number(s):	ADC 554 of 2018
Judgment of:	STRICKLAND, AINSLIE-WALLACE & ALDRIDGE JJ
Date of judgment:	12 November 2021
Catchwords:	FAMILY LAW – APPEAL – FINAL PARENTING AND PROPERTY – Where the wife appeals orders for equal shared parental responsibility – Where the children ought to have a meaningful relationship with their father – Where the primary judge considered the evidence of the Family Consultant – Where the wife appeals final property settlement orders – Family trust – Whether the husband was in control and receiving distributions from the trust – Where the primary judge did not err in the treatment of any interest the husband held in the family trust – Appeal dismissed – Costs ordered in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) ss 65DAA, 75(2)
Cases cited:	Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Number of paragraphs:	93
Date of hearing:	21 June 2021
Place:	Adelaide, delivered in Sydney
Counsel for the Appellant:	Mr Tredrea
Solicitors for the Appellant:	Purdie Legal
Counsel for the Respondent:	Ms Pyke QC
Solicitors for the Respondent:	Culshaw Miller Lawyers

ORDER MADE BY:	STRICKLAND, AINSLIE-WALLACE & ALDRIDGE JJ
DATE OF ORDER:	12 NOVEMBER 2021