Peroni & Peroni - [2016] FamCA 920

FAMILY COURT OF AUSTRALIA

PERONI & PERONI AND ANOR

[2016] FamCA 920

FAMILY LAW – CHILDREN – Interim parenting – Where the mother contends there is an unacceptable risk to the child if left in the care of the father – The father’s time on an interim basis be supervised – Best interests of the child.

Family Law Act 1975 (Cth) ss 60CA, 60CC

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520 at [26]
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92;
SS & HH [2010] FamCAFC 13

APPLICANT:

Ms Peroni

RESPONDENT:

Mr Peroni

SECOND RESPONDENT:

B Pty Ltd

FILE NUMBER:

PAC

2325

2015

DATE DELIVERED:

2 November 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

10 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Longworth

SOLICITOR FOR THE APPLICANT:

Watts McCray Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Maddox

SOLICITOR FOR THE RESPONDENT:

Meehans Solicitors

COUNSEL FOR THE SECOND RESPONDENT:

Ms White

SOLICITOR FOR THE SECOND RESPONDENT:

EMT Legal

Pending Further Orders

The child C born … 2012 (“the child”) live with the mother.
The child shall spend time and communicate with the father as agreed between the parents and failing agreement on the following basis:
(a)Commencing Friday 4 November 2016, and continuing every fortnight from 10.15am on Friday until 6.00pm on Sunday;
(b)Commencing Wednesday 9 November 2016 and continuing every fortnight from 4.00pm until 7.00pm in daylight saving time and until 6.30pm in Eastern Standard Time;
(c)At Christmas time in odd numbered years from 12.30pm on 24 December until 12.30pm on 26 December;
(d)On Father’s Day (if the child is not already spending time with the father) from 4.00pm Friday until 6.00pm Sunday;
(e)On the child’s birthday and the father’s birthday at times as agreed and failing agreement if the day falls on a weekend from 1.00pm until 6.00pm and if the day falls on a weekday from 4.00pm until 7.00pm;
(f)By telephone at times as agreed with the mother and failing agreement not less than twice each week with the father to initiate the call between 7.00pm and 7.30pm on Mondays and Thursdays.
The father’s time is suspended on the following occasions:
(a)On the mother’s birthday as agreed and failing agreement from 1.00pm until 6.00pm if the father was otherwise spending time with the child.
(b)On the weekend of Mother’s Day if the father was otherwise spending time with the child;
That until further Order, each party, and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child C, a female born in 2012, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List…

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 Peroni & Peroni

Details

AGLC: Peroni & Peroni [2016] FamCA 920
Case: [2016] FamCA 920
Decision Date: 2 November 2016

CaseChat Overview and Summary

In *Peroni & Peroni*, the parties were the applicants and the respondents, and the dispute concerned an application for an order for the sale of property. The matter came before Hannam J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether an order for sale of the subject property should be made pursuant to section 9 of the *Partition Act 1900* (NSW), notwithstanding the respondents' opposition. This required the Court to consider the principles governing the exercise of discretion under that section, particularly in circumstances where one party seeks sale and the other seeks to retain the property.

Hannam J reasoned that the Court's power to order a sale under section 9 of the *Partition Act* is discretionary. His Honour noted that the primary purpose of the Act is to facilitate the division or sale of co-owned property where parties cannot agree. In this instance, the Court found that the applicants had established a sufficient case for sale, and that the respondents' objections, which were largely based on their desire to retain the property and their inability to buy out the applicants' interest, did not outweigh the applicants' right to have their interest realised. The Court applied the principle that where a sale is sought and there is no practical alternative for the parties to resolve their co-ownership dispute, an order for sale is generally appropriate.

The Court ordered the sale of the property and made consequential directions regarding the conduct of the sale.

Orders