ROWSE & GOUKER - [2020] FCCA 3163

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROWSE & GOUKER

[2020] FCCA 3163

Catchwords:
FAMILY LAW – PARENTING – best interests of two children aged 7 and 4 – father seeking extensive unsupervised time including overnight time – each parent asserting significant family violence by the other – court accepting mother’s evidence – court accepting significant concerns about the fathers mental health and lack of insight – court ordering supervised time as sought by the Independent Children’s Lawyer.

PROPERTY – wife seeking 74/26 split of non-superannuation pool – husband seeking 60/40 in favour of the wife – contributions found by court to be 53/47 in light of Kennon factors – wife to have predominant care of children and having lower earning capacity than the husband – 70/30 division clearly just and equitable.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 75(2).106A, 102NA, 190

Cases cited:

Goode v Goode [2006] FamCA 1346

Mallet v Mallet (1984) 156 CLR 605

Kennon & Kennon [1997] FamCA 27

Stanford & Stanford (2012) 247 CLR 108

Applicant:

MR ROWSE

Respondent:

MS GOUKER

File Number:

DGC 2608 of 2019

Judgment of:

Judge Burchardt

Hearing date:

23 September 2020

Date of Last Submission:

23 September 2020

Delivered at:

Dandenong

Delivered on:

24 November 2020

REPRESENTATION

Counsel for the Applicant:

Self-Represented

Solicitors for the Applicant:

Not applicable

Advocate for the Respondent:

Mr Ng

Solicitors for the Respondent:

Pentana Stanton Lawyers

Counsel for the Independent Children's Lawyer:

Mr McLeod

Solicitors for the Independent Children's Lawyer:

Ebejer and Associates

ORDERS

PARENTING ORDERS

The mother have sole parental responsibility for the children X born 2016 and Y born 2013 (“the children”).
The children live with the mother.
The children spend time with the father professionally supervised by the Family Contact Service, or other agreed service, once per month for a minimum of two hours at times and dates as can be accommodated by that service, with all costs associated with same to be borne by the father.
Both parents undertake a parenting program and a parenting after separation program as provided for in the Orders made 8 April 2020, with each parent to do all acts and things to enrol in such program within 14 days of the program/s recommencing after the Covid restrictions permit them to do so.
The father undertake Men’s Behavioural Change program, with the father to do all acts and things to enrol in such program within 14 days of the program recommencing after the Covid restrictions permit them to do so.

AND THE COURT NOTES:

A.In the event the father seeks to bring a further application to reagitate these proceedings, he should not do so for at least 12 months and any such application should include an affidavit which addresses the following:
(a)His drug use, and any engagement with drug and alcohol counselling, and any screens that he has undertaken;
(b)His engagement and completion of a men’s behavioural change program and/or individual counselling which addresses strategies relating to anger management and family violence;
(c)His insight into the effect of…

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 ROWSE & GOUKER

Details

AGLC: ROWSE & GOUKER [2020] FCCA 3163
Case: [2020] FCCA 3163
Decision Date: 24 November 2020

CaseChat Overview and Summary

In the matter of Rowse & Gouker, heard by Judge Burchardt, the court considered parenting and property disputes between the parents of two young children. The father sought extensive unsupervised time with the children, including overnight stays. Both parents alleged significant family violence by the other. The mother also sought a 74/26 split of the non-superannuation asset pool, while the father proposed a 60/40 division in her favour.

The court was required to determine the best interests of the children in light of the allegations of family violence and concerns regarding the father's mental health and insight. Additionally, the court needed to assess the parties' contributions and other relevant factors, including the wife's primary care of the children and lower earning capacity, to determine a just and equitable division of the property pool.

The court accepted the mother's evidence regarding family violence and found significant concerns about the father's mental health and lack of insight. Consequently, the court ordered that the children live with the mother and have sole parental responsibility. The father's time with the children was restricted to supervised visits once per month, with all associated costs to be borne by him. The court also ordered both parents to undertake parenting programs and the father to complete a Men's Behavioural Change program. Regarding property, the court found contributions to be 53/47 in favour of the wife, and in light of the wife having predominant care of the children and a lower earning capacity, ordered a 70/30 division of the non-superannuation pool in her favour. This division was deemed just and equitable.

Orders

Orders of the court

PARENTING ORDERS

The mother have sole parental responsibility for the children X born 2016 and Y born 2013 (“the children”).

The children live with the mother.

The children spend time with the father professionally supervised by the Family Contact Service, or other agreed service, once per month for a minimum of two hours at times and dates as can be accommodated by that service, with all costs associated with same to be borne by the father.

Both parents undertake a parenting program and a parenting after separation program as provided for in the Orders made 8 April 2020, with each parent to do all acts and things to enrol in such program within 14 days of the program/s recommencing after the Covid restrictions permit them to do so.

The father undertake Men’s Behavioural Change program, with the father to do all acts and things to enrol in such program within 14 days of the program recommencing after the Covid restrictions permit them to do so.

AND THE COURT NOTES:

A. In the event the father seeks to bring a further application to reagitate these proceedings, he should not do so for at least 12 months and any such application should include an affidavit which addresses the following:

(a) His drug use, and any engagement with drug and alcohol counselling, and any screens that he has undertaken;

(b) His engagement and completion of a men’s behavioural change program and/or individual counselling which addresses strategies relating to anger management and family violence;

(d) Evidence of completion of parenting programs; and

(e) What time, if any, he has been spending with the children, and the consistency of that time.

PROPERTY ORDERS

THE COURT NOTES:

A. That for the purposes of these orders, the notional non-super pool comprises:

NO.

ITEM

AMOUNT

Net proceeds of sale of former matrimonial home at A Drive, Suburb B (‘the Suburb B property’) held on trust by for both parties by wife's solicitors

$303,319.77

Interim distributions paid to the husband on 12 August 2020 and 26 August 2020

$27,360.00

Interim distribution paid to wife on 26 August 2020

$42,640.00

Husband's C motor vehicle

$7,500.00

Wife's household contents

$5,000.00

Husband's Westpac personal loan liability

$31,615.55

Husband's Westpac Visa credit card

$3,601.06

THE COURT ORDERS:

That the net proceeds of sale of the Suburb B property be divided in such proportions as would lead to a 70% to 30% division of the notional non-super pool in value terms in favour of the wife, on the basis that the wife will retain sole ownership of or responsibility for items 3 and 5 while the husband retains sole ownership of or responsibility for items 2, 4, 6 and 7.

That Pursuant to Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of Mr Rowse’s interest in Superannuation D, the trustee shall pay to Ms Gouker the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $31,868 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders;

The operative time for the purposes of this order is four (4) business days from the date of these orders.

Upon having been accorded procedural fairness, this order is binding upon the trustee.

10.

There be liberty to apply reserved to each party and the trustee in relation to the implementation of the order(s) affecting the superannuation interest of Mr Rowse in Superannuation D.

11.

That unless otherwise specified in these orders and save for the purpose of enforcing such orders:

(a) each party 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 the date of these orders;

(b) each party forego any claims they may have to any superannuation benefits belonging to or earned by the other but for these orders;

(d) insurance policies remain the sole property of the beneficiary named therein;

(e) each party be solely liable for and indemnify the other against any liability in their sole name or liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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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