PARKES & PARKES - [2014] FCCA 102

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARKES & PARKES

[2014] FCCA 102

Catchwords:
FAMILY LAW ̶ Whether children’s relationship with husband promoted by increasing time ̶ relevance of three-year-old child’s anxiety as a result of witnessing incidents between parties ̶ whether binding financial agreement should be set aside ̶ whether husband’s conduct in producing binding financial agreement three days before wedding unconscionable ̶ whether husband’s conduct in saying three days before wedding if binding financial agreement not signed by wife wedding was off was duress or undue influence.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 65DAA, 90B, 90K

Pascot and Pascot [2011] Fam CA 945
Louth v Diprose [1992] HCA 61

Applicant:

MR PARKES

Respondent:

MS PARKES

File Number:

DGC 148 of 2013

Judgment of:

Judge Phipps

Hearing dates:

20 & 21 November 2013

Date of Last Submission:

21 November 2013

Delivered at:

Dandenong

Delivered on:

24 January 2014

REPRESENTATION

The Applicant:

Appearing in person

Counsel for the Respondent:

Mr Marchetti

Solicitors for the Respondent:

Berry Family Law

ORDERS

Children

That all previous orders are discharged as from 3 February 2014.
That the husband and the wife have equal shared parental responsibility for the children [X] born [in] 2009 and [Y] born [in] 2011.
That the children live with the wife.
That commencing 4 February 2014 the children spend time and communicate with the husband as follows:
(a)Each Tuesday from 10.00am to 4.00pm commencing 4 February 2014;
(b)Each alternate weekend from 12noon Saturday until 5.00pm Sunday commencing 15 February 2014;
(c)Each alternate Friday from 10.00am to 4.00pm commencing 7 February 2014;
(d)For two hours as agreed on each of the children’s birthdays;
(e)From 10.00am to 4.00pm on Father’s Day if it is not a spend time day;
(f)For 6 hours on Christmas Day as agreed and if not agreed from 10.00am to 4.00pm;
(g)By telephone at reasonable times by agreement.
That if Mother’s Day is a spend time day the children’s time with the father is suspended from 10.00am.
That for the purpose of changeover the mother shall deliver the children at the commencement of the father’s time at the [omitted] Playhouse in [suburb omitted] and the father shall deliver the children at the conclusion of his time to the [omitted] Play Centre at [suburb omitted].
That unless otherwise agreed no later than 31 October 2014 each party contact Dispute Mediation Services Australia in [omitted] to make arrangements for their attendance to discuss future parenting arrangements for the children.

Property

That the binding financial agreement between the husband and the wife dated 13 November 2008 is set aside.
That the parties attend a conciliation conference with a registrar of the court on 4 April 2014 at 2.15pm.
That the matter be adjourned for mention on 4 April 2014 at 10.00am in the Federal Circuit Court of Australia at Dandenong stood down until completion of the conciliation conference listed this day.
That unless by 28 February 2014 the parties have confirmed in writing an agreement as to the current market value…

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 PARKES & PARKES

Details

AGLC: PARKES & PARKES [2014] FCCA 102
Case: [2014] FCCA 102
Decision Date: 24 January 2014

CaseChat Overview and Summary

In the matter of *Parkes & Parkes*, Judge Phipps of the Federal Circuit Court of Australia considered parenting and property disputes between a husband and wife. The proceedings involved orders concerning the children, [X] and [Y], and the division of their assets.

The court was required to determine arrangements for the children's living arrangements, time spent with each parent, and communication. Additionally, the court had to consider the validity of a binding financial agreement between the parties and make orders regarding the valuation of certain properties and a business.

The court ordered that previous parenting orders be discharged and that the husband and wife have equal shared parental responsibility for the children, with the children to live with the wife. Specific arrangements were detailed for the children's time with the husband, including weekday and weekend contact, communication, and provisions for birthdays and public holidays. The court also made orders for the changeover of the children between parents and directed the parties to attend mediation to discuss future parenting arrangements. Regarding property, the court set aside the binding financial agreement dated 13 November 2008 and ordered the parties to attend a conciliation conference. Further orders were made for the parties to obtain sworn valuations of specified properties and a business unless they reached a written agreement on their market value by a set date.

Orders

Orders of the court

Children

That all previous orders are discharged as from 3 February 2014.

That the husband and the wife have equal shared parental responsibility for the children [X] born [in] 2009 and [Y] born [in] 2011.

That the children live with the wife.

That commencing 4 February 2014 the children spend time and communicate with the husband as follows:

(a) Each Tuesday from 10.00am to 4.00pm commencing 4 February 2014;

(b) Each alternate weekend from 12noon Saturday until 5.00pm Sunday commencing 15 February 2014;

(d) For two hours as agreed on each of the children’s birthdays;

(e) From 10.00am to 4.00pm on Father’s Day if it is not a spend time day;

(f) For 6 hours on Christmas Day as agreed and if not agreed from 10.00am to 4.00pm;

(g) By telephone at reasonable times by agreement.

That if Mother’s Day is a spend time day the children’s time with the father is suspended from 10.00am.

That for the purpose of changeover the mother shall deliver the children at the commencement of the father’s time at the [omitted] Playhouse in [suburb omitted] and the father shall deliver the children at the conclusion of his time to the [omitted] Play Centre at [suburb omitted].

That unless otherwise agreed no later than 31 October 2014 each party contact Dispute Mediation Services Australia in [omitted] to make arrangements for their attendance to discuss future parenting arrangements for the children.

Property

That the binding financial agreement between the husband and the wife dated 13 November 2008 is set aside.

That the parties attend a conciliation conference with a registrar of the court on 4 April 2014 at 2.15pm.

10.

That the matter be adjourned for mention on 4 April 2014 at 10.00am in the Federal Circuit Court of Australia at Dandenong stood down until completion of the conciliation conference listed this day.

11.

That unless by 28 February 2014 the parties have confirmed in writing an agreement as to the current market value of Property N, Property H and the business [C], [address omitted] then each party forthwith do all acts and things necessary to obtain a sworn valuation by an appropriately qualified person, such valuation to be filed with the court not later than 28 March 2014.

Background

Background to the litigation

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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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