Richard and Briar (No 4) - [2008] FamCA 981

FAMILY COURT OF AUSTRALIA

RICHARD & BRIAR (NO. 4)

[2008] FamCA 981

FAMILY LAW – CHILDREN – With whom a child lives – Relocation
FAMILY LAW – PROPERTY – Gift

Family Law Act 1975 (Cth)

A & A (relocation Approach) (2000) FLC 93-035
Bolitho & Cohen (2005) FLC 93-224
U & U (2002) FLC93-112
M & S (2007) FLC 93-313
Goode v Goode (2006) FLC 93-286
Taylor & Barker (2007) FLC 93-345
W & W [2000] FamCA 1302

APPLICANT:

Mr Richard

RESPONDENT:

Ms Briar

INTERVENOR:

Maternal grandmother

INDEPENDENT CHILDREN’S LAWYER:

Danielle Webb

FILE NUMBER:

MLF

2377

2006

DATE DELIVERED:

7 November 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

14 - 17 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Melilli

SOLICITOR FOR THE APPLICANT:

Forte Family Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERVENOR:

SOLICITOR FOR THE INTERVENOR:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Swart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Danielle Webb Solicitor

Orders

The Parenting Orders

That all previous parenting orders shall be discharged.
That subject to paragraph 3 of these orders, the husband and wife shall have equal shared parental responsibility for the child … born … January 2002.
That the husband shall be entitled to keep the child enrolled in full-time formal schooling.
That each parent shall be entitled to attend all school functions and receive all school documents ordinarily available to parents, and to that end, the husband shall do what is necessary to ensure that the child’s school forwards duplicate copies of reports, information and documents to the wife.
That the child shall live with the husband.
That subject to paragraph 7 of these orders, the child shall spend time with the wife as follows:
(a)If the wife is residing in Victoria:
(i)     During school terms each alternate week-end from after school Friday until 5.00pm Sunday, save that if the wife is living within 1 hour’s drive of E, then until the commencement of school on Monday, starting the first week-end of each school term, and to commence on Friday 14 November 2008;
(ii)    During school terms, from the conclusion of school to 6.30pm each Wednesday, provided that time is spent in the E area, and the wife shall return the child to the husband outside the E police station;
(iii)     For one half of each school holiday period being the first half in the 2008/2009 summer holidays and 2009 school year, the second half in the 2009/2010 summer holidays and 2010 school year, and alternating thereafter;
(iv)   From 4.00pm 24 December 2008 to 4.00pm 25 December 2008 and each alternate year thereafter and from 4.00pm 25 December 2009 to 4.00pm 26 December 2009 and each alternate year thereafter, and spend time with the husband from 4.00pm 25 December 2008 to 4.00pm 26 December 2008 and each alternate year thereafter and from 4.00pm 24 December 2009 to 4.00pm 25 December 2009 and each alternate year thereafter and all Christmas time change-overs…

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 Richard and Briar (No 4)

Details

AGLC: Richard and Briar (No 4) [2008] FamCA 981
Case: [2008] FamCA 981
Decision Date: 7 November 2008

CaseChat Overview and Summary

Dessau J of the Family Court of Australia made orders concerning parenting and property disputes between Richard and Briar. The core of the parenting dispute involved determining the living arrangements and shared responsibilities for their child, born in January 2002, and addressing concerns about the mother's ability to facilitate a long-term relationship with the father. The property dispute concerned the division of proceeds from the former matrimonial home and the allocation of various assets and debts between the parties.

The court was required to determine the most appropriate parenting orders, considering the child's best interests, including the likely effect of any separation from either parent or other significant individuals, and the practical difficulties and expenses associated with communication and contact. Specifically, the court had to assess the mother's insight into the impact of separation on the child and the father's capacity to ensure ongoing contact with the mother. In relation to property, the court needed to distribute the proceeds of the former matrimonial home and allocate other specified assets and liabilities.

In reaching its decision, Dessau J considered reports from a Family Report writer who noted the mother's dismissiveness of the child's need for a relationship with his father and her lack of encouragement for a long-term parental bond. The judge found the mother's assessment of the child's well-being during a previous separation from his father to be less credible than the father's account, which acknowledged the child's happiness but also his missing his mother and sister. The court concluded that the father's proposal offered a greater likelihood of the child maintaining contact with his mother, despite the significant changes the child would experience regardless of the chosen arrangement. The court also ordered the wife to pay the husband's costs, fixed at $14,000, to be deducted from her share of the matrimonial home proceeds.

The court ordered that previous parenting orders be discharged and that the husband and wife have equal shared parental responsibility, with the child to live with the husband. Detailed provisions were made for the child's time with the wife, varying depending on her residence and including specific arrangements for school terms, holidays, birthdays, and communication. The court also made orders regarding the child's passport, travel, and restrictions on denigrating the other parent in the child's presence. Property orders included the distribution of proceeds from the former matrimonial home, the retention of specific assets and debts by each party, and the division of joint bank accounts.

Orders

Orders of the court

The Parenting Orders

That all previous parenting orders shall be discharged.

That subject to paragraph 3 of these orders, the husband and wife shall have equal shared parental responsibility for the child … born … January 2002.

That the husband shall be entitled to keep the child enrolled in full-time formal schooling.

That each parent shall be entitled to attend all school functions and receive all school documents ordinarily available to parents, and to that end, the husband shall do what is necessary to ensure that the child’s school forwards duplicate copies of reports, information and documents to the wife.

That the child shall live with the husband.

That subject to paragraph 7 of these orders, the child shall spend time with the wife as follows:

(a) If the wife is residing in Victoria:

(i) During school terms each alternate week-end from after school Friday until 5.00pm Sunday, save that if the wife is living within 1 hour’s drive of E, then until the commencement of school on Monday, starting the first week-end of each school term, and to commence on Friday 14 November 2008;

(ii) During school terms, from the conclusion of school to 6.30pm each Wednesday, provided that time is spent in the E area, and the wife shall return the child to the husband outside the E police station;

(iii) For one half of each school holiday period being the first half in the 2008/2009 summer holidays and 2009 school year, the second half in the 2009/2010 summer holidays and 2010 school year, and alternating thereafter;

(iv) From 4.00pm 24 December 2008 to 4.00pm 25 December 2008 and each alternate year thereafter and from 4.00pm 25 December 2009 to 4.00pm 26 December 2009 and each alternate year thereafter, and spend time with the husband from 4.00pm 25 December 2008 to 4.00pm 26 December 2008 and each alternate year thereafter and from 4.00pm 24 December 2009 to 4.00pm 25 December 2009 and each alternate year thereafter and all Christmas time change-overs shall take place at …;

(v) On the week-end of Mother's Day from 5.00pm Saturday until 5.00pm Sunday on the proviso that if Father's Day falls on a “time with” week-end, then the wife’s time is suspended from 5.00pm Saturday; and

(vi) On each of the wife’s and the child’s birthdays for a period of three hours as agreed between the parties and in default of agreement, from 3.30pm to 6.30pm in the E area; and

(vii) By telephone or webcam each Wednesday between 6.30pm and 7.30pm and at other reasonable times.

(b) If the wife is not residing in Victoria:

(i) From the first Saturday until the last Saturday of the July or mid-year term holiday;

(ii) For four weeks of the summer holidays being the first half in the 2008/2009 holidays, the second half in the 2009/2010 holidays, and alternating thereafter;

(iii) When the child is otherwise with the maternal family;

(iv) By telephone or webcam each Wednesday;

(v) By telephone on Christmas Day, Mother's Day, and each of the wife’s and the child’s birthdays between 6.30pm and 7.30pm and at other reasonable times; and

(vi) By letters and cards.

That for the purposes of the wife’s time with the child pursuant to paragraph 6 of these orders, the time shall take place:

(a) In the substantial attendance of either of the maternal grandmother, the maternal uncles or their wives, but not Miss R Briar without one of them; and

(b) In Victoria until the end of the 2010 July or mid-year term holiday.

That while the child is with the wife, the husband is permitted to contact him by telephone or webcam each Wednesday, Christmas Day and Father's Day and the child’s birthday between 6.30pm and 7.30pm and at other reasonable times.

That for the purpose of travel if the wife resides outside Victoria, once the child is spending unsupervised time with her, the wife shall pay for and arrange travel at the start of her time with him and the husband shall pay for and arrange travel at the conclusion, and such travel shall include an accompanying adult until the child reaches the age of ten.

10.

That any change-overs which do not take place at the child’s school or outside the E police station shall take place at the service station at … and handovers shall be effected by either of the maternal grandmother, the maternal uncles or their wives and in the absence of the wife and/or Miss R Briar.

11.

That each parent shall keep the other parent advised of their current residential address and telephone contact numbers to be used only in case of emergency.

12.

That the wife shall sign and return to the husband a passport application for the child within 14 days of these orders and in the event that she fails to do so, the husband may obtain a passport for the child without the wife’s consent.

13.

That once a passport has issued for the child, it shall be held by the husband and he shall be at liberty to take the child overseas for one trip of no more than 28 days’ duration in the 12 month period from the date the child’s passport is issued, provided that otherwise the child’s name shall be placed and maintained on the Airport Watch List at all points of departure from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.

14.

That the husband’s solicitor shall forthwith arrange for service of a sealed copy of this order on the AFP and the Marshal of the Family Court of Australia.

15.

That at least 28 days before the husband takes the child overseas he must give to the wife in writing:

(a) Notice of his intention to take the child overseas;

(b) Details of his destination while away from Australia;

(d) A contact telephone number

16.

That each party by themselves, their servants and/or agents shall be and are hereby restrained from:

(a) Denigrating the other in the presence or hearing of the child;

(b) Discussing the proceedings in the presence or hearing of the child; and

17.

That in the event that the wife fails to return the child to the husband at the conclusion of any visits pursuant to these orders, then all such “time with” orders shall be immediately suspended and the wife shall not have time with the child without an express written agreement between the parties, or further order of this Court.

18.

That pursuant to s 65DA 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.

19.

That the appointment of the ICL shall be and is hereby discharged.

The Property Orders

20.

That subject to paragraph 27 of these orders, within 14 days the parties shall do all acts and things to ensure that the proceeds of the sale of the former matrimonial home held on their behalves shall be distributed as to:

(a) $28,615 to the wife;

(b) $51,770.63 to the husband; and

21.

That the husband shall retain:

(a) Any funds he holds as Trustee for the child;

(b) His 1993 Laser motor vehicle;

(d) The debt to his parents for payment of the mortgage over the former matrimonial home; and

(e) The entirely of his interest in his Super Fund 1, Super Fund 2 and Super Fund 3 superannuation funds.

22.

The wife shall retain her Camry motor vehicle and superannuation, if any.

23.

That within 14 days from the date of these orders, the wife shall make available to the husband any photographs, video tapes and other pictorial records of the child, and the husband shall be at liberty to make copies of all those items, at his expense, and he shall return the originals to the wife within 14 days thereafter.

24.

That unless otherwise specified and save for the purpose of enforcing the payment of any money due under the proposed settlement:

(a) Each party shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at this date;

(b) Monies standing to the credit of the parties in any joint bank account is to be divided equally between the parties;

(d) Each party is to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

25.

That otherwise all existing applications shall be dismissed and the case removed from the list of cases awaiting finalisation in the Court.

26.

That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

27.

That the wife shall pay the husband’s costs fixed at $14,000, and such sum shall be deducted from the share she shall receive under paragraph 20 of these orders.

28.

That a transcript of the costs reasons given by me this day shall be prepared and retained on the court file.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In her first Family Report in 2006, Ms D observed that the mother was “somewhat dismissive of the child needing to maintain a relationship with his father and that it was not clear that she would encourage, promote and facilitate a long-term parental relationship for [the child] with his father”. In her second report, her view was unchanged, and indeed fortified by events in between. Ms D was clear in her evidence that the mother’s time with the child should at present be supervised, with the risk of her further absconding. The evidence, as I have noted, supports that. (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; Although the mother emphasises that the child lives “in the here and now” and that he will always be happy once he settles with either parent, in my view she has underestimated the effect of a long-term separation from either of the two parents he loves. Her claim, that in FNQ he was happy and contented and showed no ill-effects of being away from his father or other family members, did not ring true, especially when she talks of the utter devotion he feels for R, from whom he was separated for many months. The father’s evidence that the child took some time to settle when he returned to him, that he was then happy and is happy, but that he does miss his mother and sister, strikes me as the more astute and honest assessment. The mother shows little insight in the way she underestimates the effect on the child of being separated for lengthy periods from either parent. If I follow her proposal, it is likely that R will be with them in Queensland and that is to the benefit of the child. If I follow the husband’s proposal, the child will be with friends and in familiar circumstances in Victoria and will spend one week-end per month with the maternal family with whom he is very close. If R stays in Victoria, the child will have the opportunity to see her with his grandmother. The relationship is important to him, but I cannot overlook that R will leave school after a year. Her life and the child’s are on different trajectories, given her age. And it is hard for the mother to emphasise the importance for the child to be with R, when it was she who separated them for months’ of this year. Unfortunately, the proposals with which I am presented are such that there is going to be a very significant change for this child one way or the other. Neither is ideal, but with his father I am more confident that he will see his mother than the other way round.(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;