REDWOOD & DELACEY - [2020] FCCA 2612

FEDERAL CIRCUIT COURT OF AUSTRALIA

REDWOOD & DELACEY

[2020] FCCA 2612

Catchwords:
FAMILY LAW – Parenting – parties in strenuous dispute over best interests of 4 year old son – parenting dispute exacerbated by parties ferocious financial disagreement – mother seeking 10/3 arrangement and father seeking equal time – significant disputes as to father’s alleged drug and alcohol abuse – father refusing to undergo hair follicle testing – lack of child focus by both parents – orders made as sought by Independent Children’s Lawyer.

FAMILY LAW – Property – parties only in relationship for about 4 years – wife seeking to excise all pre-relationship assets – husband obsessed with wife’s alleged overspending and siphoning off of funds – both sides keenly attuned to financial gain – pre-relationship assets excluded from pool but relevant as s.75(2)(o) matters – husband’s significant contributions to matrimonial home – contributions assessed 55/45 in favour of husband – future needs equal – 55/45 division just and equitable.

Legislation:

Family Law Act 1975 (Cth), ss.75, 60CC

Child Support (Assessment) Act 1989 (Cth) s.124

Cases cited:

Goode v Goode [2006] FamCA 1346

Stanford and Stanford (2012) 247 CLR 108

Applicant:

MS REDWOOD

Respondent:

MR DELACEY

File Number:

DGC 2126 of 2019

Judgment of:

Judge Burchardt

Hearing dates:

24 & 25 August 2020

Date of Last Submission:

25 August 2020

Delivered at:

Dandenong

Delivered on:

23 September 2020

REPRESENTATION

Counsel for the Applicant:

Ms Conlan

Solicitors for the Applicant:

Sterling Walters Lawyers

Counsel for the Respondent:

Not Applicable

Solicitors for the Respondent:	Self-Represented
Counsel for the Independent Children's Lawyer:	Mr Tesoriero
Solicitors for the Independent Children's Lawyer:	Wilkinson and Associates

ORDERS

PARENTING

That the husband and wife have equal shared parental responsibility for the child X born in 2016 (the child).
That the child live with the wife.
That the child spend time with the husband at the following times:
(a)Commencing 28 August 2020 each alternate weekend from 5.00pm Friday until 5.00pm Sunday;
(b)Commencing 13 November 2020 each alternate weekend from 5.00pm on Friday until the start of childcare or kinder on Monday and each alternate weekend thereafter;
(c)Each Wednesday from 12.00noon, or the conclusion of school or childcare (whichever is the latter) until the commencement of childcare or school on Thursday;
(d)From 12.00noon Christmas Eve until 3.00pm Christmas Day in even numbered years and from 3.00pm Christmas Day until 6.00pm Boxing Day in odd numbered years;
(e)From 5.00pm the Saturday before Father’s Day until the commencement of school or kinder on the Monday after Father’s Day;
(f)as otherwise agreed in writing between the parties in writing, including SMS.
That upon the child commencing school in 2022:
(a)the child spend time with the husband for half of all term holiday periods as agreed but failing agreement for the first half;
(b)The child spend time with the Father for half of the long summer holiday period by agreement but failing agreement on a week-about basis until the child is 8 years old and thereafter either as agreed or for the…

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 REDWOOD & DELACEY

Details

AGLC: Redwood and Delacey [2020] FCCA 2612
Case: [2020] FCCA 2612
Decision Date: 23 September 2020

CaseChat Overview and Summary

In a family law matter before Judge Burchardt, the court considered a strenuous dispute between a mother and father concerning the best interests of their four-year-old son, a dispute exacerbated by significant financial disagreements. The mother sought a 10/3 parenting arrangement, while the father sought equal time. The proceedings were further complicated by allegations of the father's drug and alcohol abuse, and his refusal to undergo hair follicle testing. The court also addressed a property dispute arising from the parties' four-year relationship, where the wife sought to exclude all pre-relationship assets and the husband alleged the wife had engaged in overspending and siphoning of funds.

The primary legal issues before the court were: (1) what parenting orders were in the best interests of the child, particularly in light of allegations of substance abuse and the parents' lack of child focus; and (2) how the parties' property pool should be divided, including the treatment of pre-relationship assets and the assessment of contributions and future needs. The court was required to balance the competing interests of the parents while prioritising the welfare of the child.

Regarding parenting, the court ultimately made orders consistent with the recommendations of the Independent Children’s Lawyer, establishing equal shared parental responsibility but with the child living with the mother. The orders detailed specific time arrangements for the father, including a phased introduction of overnight stays and holiday time, and imposed strict conditions on both parents regarding alcohol and drug consumption while the child is in their care. Notably, the father was ordered to purchase and use a breathalyser device with photographic verification for a period of six months. In relation to property, the court excluded pre-relationship assets from the pool but considered them relevant under section 75(2)(o) of the *Family Law Act 1975* (Cth). The court found the husband's contributions to the matrimonial home were significant, assessing contributions at 55/45 in his favour, and determined future needs to be equal. Consequently, the court ordered a 55/45 division of the property pool in favour of the husband, with specific orders for the payment of a sum to the wife and the potential sale of the real property if payment was not made within 30 days.

Orders

Orders of the court

PARENTING

That the husband and wife have equal shared parental responsibility for the child X born in 2016 (the child).

That the child live with the wife.

That the child spend time with the husband at the following times:

(a) Commencing 28 August 2020 each alternate weekend from 5.00pm Friday until 5.00pm Sunday;

(b) Commencing 13 November 2020 each alternate weekend from 5.00pm on Friday until the start of childcare or kinder on Monday and each alternate weekend thereafter;

(c) Each Wednesday from 12.00noon, or the conclusion of school or childcare (whichever is the latter) until the commencement of childcare or school on Thursday;

(d) From 12.00noon Christmas Eve until 3.00pm Christmas Day in even numbered years and from 3.00pm Christmas Day until 6.00pm Boxing Day in odd numbered years;

(e) From 5.00pm the Saturday before Father’s Day until the commencement of school or kinder on the Monday after Father’s Day;

(f) as otherwise agreed in writing between the parties in writing, including SMS.

That upon the child commencing school in 2022:

(a) the child spend time with the husband for half of all term holiday periods as agreed but failing agreement for the first half;

(b) The child spend time with the Father for half of the long summer holiday period by agreement but failing agreement on a week-about basis until the child is 8 years old and thereafter either as agreed or for the first half in odd numbered years and the second half in even numbered years;

That the husband’s time with the child be suspended and the child return to the Mother as follows:

(a) from 12 noon Christmas Eve until 3.00pm Christmas Day in odd numbered years and from 3.00pm Christmas Day until 6.00pm Boxing Day in even numbered years;

(b) from 5.00pm the Saturday before Mother’s Day until the commencement of school or kinder the following Monday;

(c) for a period of two consecutive weeks over the long summer holidays, when the child is at school, or between December and February before the child starts school, with the wife to provide the husband with 6 weeks’ notice as to the dates on which she wishes to spend this time with X; and

(d) as otherwise agreed in writing.

That the parties be restrained from consuming alcohol so that either party has blood alcohol level above .05, or being under the influence of, or consuming, any non-prescribed prescription medication, illicit substance or synthetic marijuana or any synthetic cannaboid while the child is in their care.

The Father purchase both a BACTrack device (“the BACTrack’) and a subscription to the relevant BACTrack App forthwith, and by no later than 30 September 2020, and the combination purchased must enable the Father to undertake BAC testing while a photograph is simultaneously taken of the Father undertaking the test with the test results and the photograph to be uploaded to the App.

The Father will do all acts and things to ensure the Mother receives notifications from the BACTrack App to her mobile telephone.

The Father undertake testing (“the testing”) with the BACTrack and corresponding App each morning upon rising, but no later than 9.00am, each morning and at 8.00pm each night that X is in his care during any time described at paragraphs 3 and 4 above for a period of not less than 6 months from the date the first reading is provided to the Mother, unless otherwise agreed between the parents.

10.

The Father meet the cost of the BACTRack device and App subscription.

11.

The parties commence therapeutic family counselling as soon as practicable with Dr B, Ms C, Ms D or another similarly qualified practitioner in 2021 to assist the parents to build a cooperative parenting relationship and reach agreement about the child’s future school enrolment.

12.

At the start of 2023 the parties consider whether it is in X’s best interests for the parents to have shared care of X, or for the Father’s time with X to be increased, and engage the counsellor described at paragraph 11 above to assist the parties to reach an agreement in this regard.

13.

The Wife ensure that the Father is listed as a contact person on any enrolment forms for medical treatment for X or any school or kinder X might attend and specifically authorise the husband to speak to any practitioner, childcare worker or teacher directly about X.

14.

Both parties advise the other in the event X is injured in their care and that injury requires medical treatment they are to inform the other party as soon as practicable and provide the details of that treating practitioner.

15.

The parents are restrained by injunction from discussing these proceedings with X, including showing the child any of the documents filed by either parent in the proceedings or discussing with the child the contents of any report prepared in this matter.

PROPERTY

16.

That the Respondent husband pay to the wife $224,650 within 30 days of these orders being made.

17.

That in the event that the whole of the payment in Order 16 has not been made within 30 days, the real property be forthwith sold altogether out of Court (“the sale”) pursuant to orders 18 to 21 inclusive.

18.

The parties shall forthwith do all such acts and things and sign all such documents as may be required to put the real property situated at E Street, Suburb F, Vic on the market for sale by private treaty with a licensed estate agent to be nominated by the president of the REIV with the reserve price to be nominated by the agent.

19.

That the parties equally share the costs of marketing and sale for the real property.

20.

Upon the settlement of the sale of the real property, the proceeds of sale will be applied:

(a) First, to pay all costs, commissions and expenses of the sale;

(b) Second, to discharge the mortgage and any other encumbrance affecting the real property;

(d) Fourth, the balance be divided between the parties so that the husband receives 55 per cent of the property pool and the wife 45 per cent in accordance with the Court’s judgment at paragraph 130, with the pool adjusted to reflect the actual net proceeds of sale.

21.

Pending the sale:

(a) The Respondent have the sole right to occupy the property;

(b) The parties hold their respective interests in the real property upon trust pursuant to these orders;

(c) The parties be equally liable for the maintenance of the property including mortgage, council rates, water charges and fees associated with the property; and

(d) Neither party shall further encumber the real property without the consent in writing of the other party

22.

The parties have liberty to apply in respect of implementation of these orders.

23.

Any Application for costs supported by written submissions of not more than 3 pages to be filed and served with on or before 7 October 2020.

24.

Any written submissions in reply of not more than 3 pages to be filed and served on 21 October 2020.

25.

The matter be determined on the papers unless otherwise ordered.

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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