Osborne and Fletcher - [2016] FamCA 880

FAMILY COURT OF AUSTRALIA

OSBORNE & FLETCHER

[2016] FamCA 880

FAMILY LAW – PROPERTY – Interim Property Application – Whether the former matrimonial home should be sold – Where the father has defacto occupation of the former matrimonial home – Where the father makes no payments in regard to the property – Where the mother seeks an order for sale and investment of all net proceeds – Where the father seeks to retain the property on final hearing – Where discussion of general principles - Where inappropriate to order sale at present – Where appropriate that father pay mortgage and outgoings pending further order – Where appropriate that mother have leave to apply if default by the father.

FAMILY LAW – CHILDREN – Interim Parenting Orders – Time the child should spend with the father – Where both parties seek equal shared parental responsibility on an interim basis – Where agreed that child will live with mother – Where each party has made accusations of abuse and inappropriate conduct against the other – Where there is no objective evidence as to those accusations – Where the accusations cannot be tested on an interim level – The best interests of the child – Where parties to engage in Child Responsive Program imminently – Where child of mature age – Where no objective evidence of the child’s wishes – Where appropriate to await Child Responsive Memorandum – Where matter adjourned part heard as to the child’s time with the father .

Bearup (1993) 16 Fam LR 797.
Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286
Harris & Harris (1993) FLC 92-378
McCall & Clark (2009) FLC 93-405
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348
Mazorski & Albright (2007) 37 Fam LR 518
MRR v GRR (2010) 240 CLR 461
Strahan & Strahan (2011) FLC 93-466

Family Law Act 1975 (Cth), ss 60, 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC3), 61DA, 61DA(2), 61DA(3), 61DA(4), 65DAA(6), 79, 79(4), 90SM, 90SM(4)

APPLICANT:

Mr Osborne

RESPONDENT:

Ms Fletcher

FILE NUMBER:

PAC

2364

2015

DATE DELIVERED:

14 October 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

12 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O'Brien

SOLICITOR FOR THE APPLICANT:

King Cain Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Campbell Paton & Taylor

Orders

PENDING FURTHER ORDER:
Parenting:

That the mother and father have equal shared parental responsibility for the child B (the child), born … 2004.
That the child live with the mother.
That otherwise these proceedings as they relate to the issue as to the child’s time with the father be adjourned part heard to a date to be fixed after release of the Child Responsive Memorandum.

Property:

That pending further order the father have sole use and occupation of the property at C Street, Suburb D, provided always:
(a)that the mother shall be at liberty to attend on that property and…

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 Osborne and Fletcher

Details

AGLC: Osborne and Fletcher [2016] FamCA 880
Case: [2016] FamCA 880
Decision Date: 14 October 2016

CaseChat Overview and Summary

This matter concerned parenting and property disputes between the mother and father of a child, B, born in 2004. The proceedings were before Foster J.

The court was required to determine the arrangements for the child's parental responsibility and living arrangements, and to make interim orders regarding the father's sole use and occupation of the family property. A key issue in the parenting dispute was the extent to which the child's wishes should be given weight in determining time arrangements with the father, particularly in light of the parents' conflictual relationship.

Foster J made orders for equal shared parental responsibility and that the child live with the mother. The court considered the mother's proposal for alternate weekend and school holiday time with the father, but cautioned against allowing the child to determine such arrangements at her age given the parties' conflict. The court noted the additional considerations under s 60CC(3) of the Family Law Act 1975 (Cth), including the child's views, the nature of the relationship with each parent, and the capacity of each parent to provide for the child's needs.

Pending further order, the father was granted sole use and occupation of the property at C Street, Suburb D, subject to specific conditions. These conditions included the mother's liberty to inspect the property monthly with 72 hours' notice, the father's obligation to maintain the property and meet mortgage and rate payments from 1 October 2016, and the mother's liberty to apply for orders for the father to vacate and for the property to be sold in the event of non-compliance. The proceedings relating to the child's time with the father were adjourned part-heard.

Orders

Orders of the court

PENDING FURTHER ORDER:

Parenting:

That the mother and father have equal shared parental responsibility for the child B (the child), born … 2004.

That the child live with the mother.

That otherwise these proceedings as they relate to the issue as to the child’s time with the father be adjourned part heard to a date to be fixed after release of the Child Responsive Memorandum.

Property:

That pending further order the father have sole use and occupation of the property at C Street, Suburb D, provided always:

(a) that the mother shall be at liberty to attend on that property and enter upon that property on one occasion each calendar month from the date of these orders provided that she notify the father in writing, such writing to include SMS or email communication of her intention to attend at the property for the purposes of inspecting the condition and repair of that property on not less than 72 hours’ notice and in the event that such notice is given the father shall do all things necessary to facilitate the mother having entry to the property for the purposes of such inspection;

(b) that it is a condition of the father’s occupation of the said property that he maintain the property in good order and condition and pay as they fall due and payable from 1 October 2016 principal and interest mortgage payments in the sum of $2,611 per month to the mortgagee and pay council and water rates levied in respect to the property and all strata levies levied in respect of the property as and from 1 October 2016,

(c) that in the event that the father fails to comply with his obligations as provided for in this order the mother shall have liberty to apply on short notice for orders that the father vacate the said property and that she be permitted to sell the said property.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Yet the mother proposes alternate weekend time for the child with the father, school holiday time and other special occasions subject only to the rider that such time be subject to the child’s wishes. To allow the child to determine such time arrangements at her age is fraught with difficulties in the context of the parties conflictual relationship and could threaten any meaningful relationship between the father and child. The Additional Considerations: s 60CC(3) Section 60CC(3) sets out the additional considerations:(3) Additional considerations are:a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;b)the nature of the relationship of the child with:(i)each of the child’s parents; and(ii)other persons (including any grandparent or other relative of the child);c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:(i)to participate in making decisions about major long‑term issues in relation to the child; and(ii)to spend time with the child; and(iii)to communicate with the child;ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i)either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;f)the capacity of:(i)each of the child’s parents; and(ii)any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;h)if the child is an Aboriginal child or a Torres Strait Islander child:(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and(ii)the likely impact any proposed parenting order under this Part will have on that right;i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;j)any family violence involving the child or a member of the child’s family;k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:(i)the nature of the order;(ii)the circumstances in which the order was made;(iii)any evidence admitted in proceedings for the order;(iv)any findings made by the court in, or in proceedings for, the order;(v)any other relevant matter;l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;m)any other fact or circumstance that the court thinks is relevant.