Resnick & Haber - [2022] FedCFamC2F 94

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Resnick & Haber [2022] FedCFamC2F 94

File number(s): MLC 11233 of 2019

Judgment of: JUDGE HARLAND

Date of judgment: 4 February 2022

Catchwords: FAMILY LAW – Parenting and property – parental responsibility – 5 year old child – husband lives in USA – short marriage – small asset pool – narrow property dispute.

Legislation: Australian Passports Act2005 (Cth), s.11
Family Law Act 1975 (Cth), pts VII, VIII, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 75, 79

Cases cited: Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Stanford v Stanford (2012) 247 CLR 108
Waterford & Waterford [2013] FamCA 33

Division: Division 2 Family Law

Number of paragraphs: 88

Date of hearing: 24 January 2022

Place: Melbourne

Counsel for the Applicant: Mr Meehan

Solicitor for the Applicant: Susan Snyder

Counsel for the Respondent: Mr Potter

Solicitor for the Respondent: Dandenong Family Lawyers
ORDERS

MLC 11233 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS RESNICK

Applicant

AND:
MR HABER

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

4 FEBRUARY 2022

THE COURT ORDERS THAT:
PARENTING
1.The Applicant Wife have sole parental responsibility for the child, X born in 2016 (‘the child’).
2.The child live with the Applicant Wife.
3.Not less than once a month the Applicant Wife send to the email address of the Respondent Husband a video and/or photographs of the child.
4.The Applicant Wife advise the Respondent Husband immediately or as soon as possible thereafter, in the event that there is any medical emergency relating to the child.
5.The Applicant Wife advise the Respondent Husband not less than once each three months of the child’s educational progress.
6.The Respondent Husband spend time with the child in Australia as follows:-
(a)Upon giving the Applicant Wife not less than one month’s notice:-
(i)For a period of two hours;
(ii)The contact supervisors on three further occasions each for a period of four hours, provided that such occasions are not more than three months apart and that the first such further occasion take place not more than three months after the first contact visit as provided for in paragraph 6(a)(i) hereof.

7.The Respondent Husband’s visits referred to in paragraph 6 will be suspended by an agreed professional supervisor and failing agreement, the Applicant Wife shall nominate at least two services and the Respondent Husband shall choose one. The Respondent Husband shall be solely responsible for the costs of supervision including reports. After the fourth visit the Respondent Husband shall obtain a response from the supervisor and will provide a copy to the Applicant Wife.
8.Subject to the Respondent Husband spending time with the child as set out in paragraphs 6 and 7 hereof the parties shall attend a family counsellor experienced in counselling separated parents for the purposes of discussing future contact between the Respondent Husband and the child. If the parties are unable…

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 Resnick & Haber

Details

AGLC: Resnick & Haber [2022] FedCFamC2F 94
Case: [2022] FedCFamC2F 94
Decision Date

CaseChat Overview and Summary

This case concerned a dispute between parents over parenting and property issues. The wife sought sole parental responsibility for their five year old child, X, and for X to live with her. The husband sought equal shared parental responsibility and for X to live with him in the United States. The husband also sought an 80/20 split of the net proceeds of sale of the former matrimonial home. The court found that the husband had not taken up opportunities to be involved in X's life and long-term decisions regarding his care and had not taken practical steps to show interest in X. The court was not confident that the husband would successfully engage with X without assistance. The court found that it was not in X's best interests for his parents to exercise equal shared parental responsibility. The court ordered that the wife have sole parental responsibility for X and for X to live with her. The court also ordered that the wife be entitled to 80% of the net proceeds of sale of the former matrimonial home.

Orders