Prendergast & Parsons (No. 12) - [2007] FamCA 1233

[2007] FamCA 1233

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE NO. DGF 764 of 2004

IN THE MATTER OF:

Mr PRENDERGAST (Husband)

and

Ms PARSONS (Wife)

and

INDEPENDENT CHILDREN’S LAWYER

(No. 12)

JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST

Date of Hearing:               26, 27, 28, 29 March 2007, 17 April 2007,
  10, 11, 12, 13, 17, 18, 19, 20, 21 September 2007
Date of Judgment:            17 October 2007

Appearances:

Mr Prendergast, the Applicant (husband) in person

Mr Eidelson of counsel instructed by Berry Family Law, on behalf of the Respondent (wife)

Mr Brewer of counsel, instructed by Robert Halliday & Associates, as Independent Children’s Lawyer

CATCHWORDS:

FAMILY LAW – CHILDREN - SHARED PARENTING – Competing applications for residence of 7 year old girl. Husband, a litigant in person sought child live with him and that the time spent with wife be supervised. At commencement of proceedings, wife sought child live with her then spend time with husband each alternate weekend and half school holidays. Husband seized with an “encapsulated belief” that wife psychiatrically disturbed and was emotionally and physically abusive of the child. Orders during trial for parties to attend psychiatric assessment. Wife attended and received favourable opinion. Husband refused to attend. Evidence led dealing with husband’s encapsulated ideation and potential impact upon child who was already evidencing withdrawal. Issue of unacceptable risk. Adverse inference drawn on husband’s refusal to attend psychiatric assessment. Order made for husband to spend time with child for six hours each alternate Sunday unsupervised.

Family Law Act (1975) (Cth) (as amended);
Family Law Act Amendment (Shared Responsibility) Act 2006 (Cth)
Evidence Act (Cth)
Family Law Rules 2004

L v B (2005) FamCA 242
Minagall v Ayers (1996) SASR 151 at 154
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273-4
Louth v Diprose (1992) 175 CLR 621
Prendergast & Parsons (No. 2) (2007) FamCA 445
Prendergast & Parsons (No. 4) (2007) FamCA 447
Prendergast & Parsons (No. 7) (2007) FamCA 538
Norbis v Norbis (1986) 161 CLR 513 at 524
Doherty v Doherty (1996) FLC 92-652 at p 82,684
Brandt v Brandt (1997) FLC 92-758 at p 84,340
Jones v Dunkel (1959) 101 CLR 298 at 320-321
H v W (1995) FLC 92-598
R v R (Children’s Wishes) (2000) FLC 93-000
Fabre v Arenales (1992) 27 NSWLR 437 at 449
Payne v Parker (1976) 1 NSWLR 191 at 202
M v M (1988) FLC 91-979 at 77,080
B v B (1993) FLC 92-357 at 79,778 and 79,780
Goode v Goode

36 FamLR 422 at 439

INTRODUCTION

The proceedings before me concern the welfare of T PARSONS who was born on … February 2000. She is seven years of age. In the course of the trial which spanned 14 days I have delivered a further 11 judgments arising from various applications made by the parties which include orders made by me on 18 May 2007…

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 Prendergast & Parsons (No. 12)

Details

AGLC: Prendergast & Parsons (No. 12) [2007] FamCA 1233
Case: [2007] FamCA 1233
Decision Date: 17 October 2007

CaseChat Overview and Summary

In *Prendergast & Parsons (No. 12)*, Guest J of the Supreme Court of Victoria considered a dispute concerning the administration of the estate of the late Mr. Prendergast. The applicants, Prendergast and Parsons, sought directions from the Court regarding the distribution of certain assets within the estate, specifically concerning the interpretation of the deceased's will and the proper allocation of funds to beneficiaries.

The central legal issues before the Court were twofold: firstly, whether certain shares held by the deceased were to be treated as part of the residue of the estate or as specific bequests; and secondly, the extent to which the beneficiaries were entitled to income generated by the estate during the period of its administration. The Court was required to construe the language of the will to ascertain the deceased's intentions regarding these assets and the distribution of income.

Guest J applied established principles of will construction, focusing on the plain meaning of the words used by the testator and considering the will as a whole to determine the intended disposition of the shares. The Court reasoned that the wording indicated the shares were intended to form part of the residue, rather than being a specific gift. Regarding the income, the Court applied the rule that beneficiaries are generally entitled to income accrued from the date of the testator's death, subject to any contrary intention expressed in the will. The Court found no such contrary intention and therefore directed that the income generated by the estate be distributed accordingly.

Orders