PROCTOR & PROCTOR

Case [2016] FCCA 613


FEDERAL CIRCUIT COURT OF AUSTRALIA

PROCTOR & PROCTOR [2016] FCCA 613

Catchwords:
FAMILY LAW – Final parenting – competing parenting applications – future care arrangements – history of police and departmental involvement – allegations of significant family violence – where the children have been exposed to family violence – where the two elder children have been enlisted as “co-conspirators” with the father against the mother – inability of the father to support the children’s relationship with the mother – where the children are enmeshed within parental conflict – consideration of unacceptable risk – mother asserts that the father actively undermines her relationship with the children – need to protect child’s emotional health and right to a relationship with the mother – allegations of child abuse unsupported by evidence – substantial issues of credit – admissibility of evidence in light of section 69ZT(1) – weight afforded evidence not admissible other than by operation of section 69ZT(1) – evidential inferences – establishment of fact and impact upon family report recommendations.

FAMILY LAW – Property adjustment – competing property adjustment applications – application for leave pursuant to section 44(3) – contributions – assessment of section 75(2) factors – failure to adduce evidence proving liabilities – failure to give proper disclosure.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 44(1), 44(2), 44(3), 44(6), 60B, 60CA, 60CC, 60CC(2A), 60I, 61C, 61DA, 61F, 64C, 65DAA(5), 65DAC, 65F, 68B, 67Z, 67ZBA, 67ZBB, 69ZN, 69ZT(1), 69ZV, 69ZW, 75(2), 78, 79(4), 90AE(3)(c)
Federal Circuit Court Rules 2001, rr.14.02, 24.07
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW), s.10
Evidence Act 1995 (Cth), ss.55, 56, 69, 135, 136, 140
Children and Young Persons (Care and Protection) Act 1998 (NSW), s.93
Mental Health Act 2007, s.32
Family Violence Best Practice Principles Version 3.2

Stevenson v Hughes [1993] FamCA 14
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Baker v The Queen [2004] HCA 45
Segur v Segur [2010] FamCA 556
State Central Authority v Ustinov (No.4) [2008] FamCA 987
Emmett & Emmett (No. 2) [2010] FamCA 57
Khalil & Tahir-Ahmadi [2012] FamCAFC 68
Maluka & Maluka [2012] FamCA 373
Lithgow City Council v Jackson [2011] HCA 36
Rickard Constructions Pty Ltd v Rickard Hails Merreti Pty Ltd [2004] NSWSC 984
Browne & Dunn (1893) 6 R 67 (HL):
Jones & Dunkel (1959) 101 CLR 298
Re F Litigant in Person Guidelines (2001) FLC 93-072
Reid v Kerr (1974) 9 SASR 367
Brandi v Mingot (1976) 12 ALR 551
Manly Council v Burn and Another (2004) NSWCA123
Makita (Australia) Pty ltd & Sprowles (2001) 52 NSWLR 705
Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611
Aytugrul v R (2012) 286 ALR 441
Barclay & Orton [2009] FamCAFC 159
Maluka & Maluka [2011] FamCAFC 72
McGregor & McGregor [2012] FamCAFC 69
Bennett & Bennett (1991) FLC 92-191
U & U (2002) FLC 93-112
Cattanach v Melchior[2003] HCA 38
McCall & Clarke [2009] FamCAFC 92
Goode &…

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Details
AGLC
PROCTOR & PROCTOR [2016] FCCA 613
Case
[2016] FCCA 613
Decision Date

CaseChat Overview and Summary

In the matter of *Proctor & Proctor*, Judge Harman considered competing parenting and property adjustment applications between a husband and wife. The parenting dispute involved allegations of significant family violence, exposure of the children to such violence, and the father's alleged enlistment of the elder children as "co-conspirators" against the mother, thereby undermining their relationship with her and contributing to their enmeshment in parental conflict. The court also addressed allegations of child abuse, which were found to be unsupported by evidence, and issues concerning the credit of the parties. In relation to property, the court considered applications for leave to proceed, contributions, and the assessment of section 75(2) factors, noting a failure by one party to adduce evidence proving liabilities and to provide proper disclosure.

The court was required to determine the future care arrangements for the children, assessing the unacceptable risk posed by the father's conduct and the need to protect the children's emotional health and their right to a relationship with the mother. Evidential issues arose concerning the admissibility and weight of evidence, particularly in light of section 69ZT(1) of the *Family Law Act 1975*, and the inferences that could be drawn from the evidence presented, including its impact on the recommendations of a family report. The court also had to resolve competing property adjustment applications, including the distribution of funds held in trust by the wife's solicitors and the declaration of sole ownership of various assets.

Judge Harman reasoned that the father's conduct presented an unacceptable risk to the children, particularly in his inability to support their relationship with the mother and his role in their enmeshment in parental conflict. The court found that the mother's relationship with the children needed protection, and while allegations of child abuse were unsubstantiated, significant issues of credit arose. The court ordered that the younger child, Y, live with the mother and that the mother have sole parental responsibility for her, while the elder child, X, would live with the father, who would have sole parental responsibility for him. The father was restrained from approaching or contacting Y. In terms of property, the court directed the distribution of funds held by the wife's solicitors, prioritising payment of the husband's debt to Centrelink and the Australian Taxation Office, before distributing the balance to the wife and then the husband. Each party was declared the sole owner of assets in their possession and was ordered to indemnify the other against debts in their respective names. All prior parenting orders were discharged.

Orders

Orders of the court

1.

The husband shall forthwith and within 48 hours of this Order deliver to the wife’s solicitors a written authorities directed to each of (omitted) and The Department of Human Services (Centrelink) which authorises each of those agencies to release to the wife’s solicitors sufficient information to confirm what debt, if any, and in what amount is owed by Mr Proctor to Centrelink and as regards the execution and delivery of such authority time shall be of the essence.

2.

Each of the parties shall forthwith and within 14 days of the date of this Order, do all things, sign all documents and give all consents, authorities and instructions as may be necessary to authorise and direct the wife’s solicitors to deal with and distribute and apply the monies presently held by them upon trust for the parties (being a sum of $144,000) as follows and in the following priority:

(a) Provided that Mr Proctor has complied strictly with Order 1 hereof, in payment to Centrelink (or (omitted) acting as collection agent on behalf of Centrelink) the amount that is advised by Centrelink or their collection agent as due and payable to Centrelink by Mr Proctor or the amount of $3,091.88 whichever is the lesser (and provided that in the event that Mr Proctor has not complied strictly with Order 1 hereof then no payment to Centrelink shall be required or made);

(b) In payment to Ms Proctor or as she may direct in writing of a sum of $131,779.40;

(c) In payment to the Australian Taxation Office of the sum of $4,245.30, being payment of the debt owed by Mr Proctor to that agency created by the Order for Costs made 12 November, 2015;

(d) In payment to Centrelink of any amount which remains due and payable to them by Mr Proctor following payment of an amount of $3,091.88 per Order 2(a) above;

(e) As to the balance then remaining to Mr Proctor.

3.

Each party shall indemnify the other and forever hold the other harmless as regards any debt in the name of and for which that party is liable or for which debt either party alleges that they are party.

4.

Pursuant to section 78 of the Family Law Act 1975, each of the husband and the wife shall be declared to be the sole and absolute owner at law and in equity and as against the other of:

(a) All monies in their respective possession, custody or control and whether held in cash or on deposit with any financial institution;

(b) All contributions to any benefits and entitlements arising from membership of any superannuation fund;

(c) Any motor vehicle in their respective possession, custody or control;

(d) All shares in their respective possession, custody or control;

(e) All furniture, jewellery, chattels and personalty in their respective possession, custody or control.

5.

All prior parenting Orders with respect to the children:

X born (omitted) 2002; and

Y born (omitted) 2004;

shall be and are hereby discharged.

6.

Y shall live with her mother Ms Proctor.

7.

Ms Proctor shall have sole parental responsibility for Y.

8.

Pursuant to section 68B of the Family Law Act 1975, Mr Proctor shall be and is hereby restrained from:

(a) Approaching Y or attending upon or being within 100 metres of Y’s home or school;

(b) Contacting or attempting to communicate with Y by any means including via third parties;

(c) Taking Y into his care or having Y in his care;

9.

X shall live with his father Mr Proctor.

10.

Mr Proctor shall have sole parental responsibility for X.

11.

A Family Consultant is requested to immediately provide to Ms Proctor and Y such assistance as may appear useful, necessary or desirable in facilitating that child’s immediate transition to the mother’s care.

12.

Discharge the Independent Children’s Lawyer.

13.

Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

14.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

15.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.

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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