FAMILY LAW – PARENTING ISSUES – Where mother seeks father have no contact with children – Where father seeks equal shared parental responsibility and eventually shared care – Allegations of family violence – Where father lied about having terminal cancer – Where father tells children he is dying – Where single expert witness significantly changed her view during cross-examination – Any contact children have with father will adversely affect mother and her parenting ability – Where it is not in best interests of children to have contact with father

FAMILY LAW – PROPERTY SETTLEMENT – Where father has not financially supported children since separation – Where mother's contributions were significantly greater after cancer deceit – Where father failed to disclose new employment during trial – Where proceedings reopened to adduce further evidence regarding father's financial circumstances

Legislation:

Family Law Act 1975 (Cth)
Interpretation Act 1984 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant
Respondent: Mr O'Brien
Mr O'Sullivan (26/08/2016)
Independent Children's Lawyer : Mr Mather

Solicitors:

Applicant: Self-Represented Litigant
Respondent: O'Sullivan Davies
Independent Children's Lawyer : Legal Aid WA

Case(s) referred to in judgment(s):

A v A (1998) FLC 92-800
B & B (1993) FLC 92-357
B & B [2006] FamCA 883
Bevan & Bevan [2013] FamCAFC 116
Bolger & Headon [2014] FamCAFC 27
Bonacci & Bonacci [2012] FamCAFC 15
Champness & Hanson (2009) FLC 93-407
Chapman & Chapman [2014] FamCAFC 91
Clauson & Clauson (1995) FLC 92-595
Collu & Rinaldo [2010] FamCAFC 53
Dekker & Dekker [2014] FCWA 61
Dickons & Dickons [2012] FamCAFC 154
Fielding & Nichol [2014] FCWA 77
Fitzgerald-Stevens & Leslighter [2015] FCWA 25
Fitzpatrick & Fitzpatrick (2005) FLC 93-227
G & G [2004] FamCA 1179
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Hamish & Brighton [2014] FamCAFC 242
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
Hungerford & Tank [2007] FamCA 637
Irvine & Irvine (1995) FLC 92-624
Jets & Maker (No 2) [2011] FMCAfam 1473
Jurchenko & Foster [2014] FamCAFC 127
M & M (1988) FLC 91-979
M & S (2007) FLC 93-313
Marsden & Winch (No 3) [2007] FamCA 1364
McCall & Clark (2009) FLC 93-405
McLay & McLay (1996) FLC 92‑667
McMahon & McMahon (1995) FLC 92-606
Mills & Watson (2008) 39 Fam LR 52
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Mulvaney & Lane (2009) FLC 93-404
Norbis v Norbis (1986) 161 CLR 513
OSF & OJK (2004) FLC 93-19
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Re Andrew (1996) FLC 92-692
Re L, V, M & H (Children)…

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 RHODES and LEWINGTON

Details

AGLC: RHODES and LEWINGTON [2017] FCWA 75
Case: [2017] FCWA 75
Decision Date: 6 JUNE 2017

CaseChat Overview and Summary

The matter before the court involved a dispute between Rhodes and Lewington, concerning both parenting issues and a property settlement. The mother, Rhodes, sought an order that the father, Lewington, have no contact with their children, while the father sought equal shared parental responsibility and eventually shared care. The case was marked by allegations of family violence, deceit by the father, and significant financial disparities between the parties. The father had lied about having terminal cancer and told the children he was dying, which significantly impacted the proceedings. Additionally, the father's financial support for the children had been negligible since the separation, with the mother making significantly greater contributions, especially after the cancer deceit was revealed. The court was required to consider these factors in determining the appropriate parenting arrangements and the financial settlement.

The legal issues before the court encompassed several critical aspects. Firstly, the court needed to assess the allegations of family violence and deceit by the father, and how these factors influenced the best interests of the children. Secondly, the court had to evaluate the impact of any contact between the children and the father on the mother's ability to parent and on the children's welfare. Thirdly, the court was tasked with determining the appropriate financial arrangements, taking into account the significant financial contributions made by the mother post-separation and the father's failure to disclose new employment during the trial.

The court concluded that it was not in the best interests of the children to have any contact with their father. The father's deceit, allegations of family violence, and the significant impact on the mother's parenting ability were deemed to outweigh any potential benefits of contact. The court also found that the father's failure to financially support the children and his concealment of new employment were critical factors in the financial settlement. The mother's significantly greater financial contributions post-separation were taken into account, leading to an order that favoured the mother in the property settlement. The court emphasised the importance of the children's welfare and the mother's role in their upbringing in reaching its decision.

The court made orders that the father have no contact with the children and that the mother and father share equal parental responsibility. The court also ordered that the father pay the mother a lump sum to compensate for her greater financial contributions since the separation. The proceedings were reopened to allow for the introduction of further evidence regarding the father's financial circumstances, ensuring a comprehensive assessment of the financial settlement.

Orders