FAMILY COURT OF AUSTRALIA
| SALLER & DANELL | [2017] FamCA 161 |
| FAMILY LAW – CHILDREN – where there are serious allegations of family violence – where the mother alleges that the father was violent to her – where the mother alleges that the father engages in acts of family violence and sexualised conduct towards the children – whether the father has taken inappropriate photos of the children – credibility of witnesses – whether there is unacceptable risk of harm – where there is a meaningful relationship between each parent and each child – consideration of the parenting arrangements that would be in the best interests of the children – whether the presumption of equal shared parental responsibility applies. |
FAMILY LAW – PROPERTY – DE FACTO RELATIONSHIP – consideration of the parties’ existing legal and equitable interests in property – consideration of whether each party made direct or indirect contributions towards the property pool – whether it is appropriate to make an adjustment of the parties property interests having regard to the matters as set out in s 90SF(3) of the Family Law Act 1975 (Cth) – consideration of what orders would be just and equitable.
| Child Protection (Offenders Registration) Act 2000 (NSW) s 3 Adamson & Adamson (2014) FLC 93-622 |
| APPLICANT: | Mr Saller |
| RESPONDENT: | Ms Danell |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
| FILE NUMBER: | SYC | 575 |
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- AGLC
- SALLER & DANELL [2017] FamCA 161
- Case
- [2017] FamCA 161
- Decision Date
CaseChat Overview and Summary
The court's reasoning involved a careful assessment of the credibility of the witnesses and the evidence presented regarding the allegations of family violence and inappropriate conduct. The primary consideration was the best interests of the children, and the court was required to determine if there was an unacceptable risk of harm to them. The court ultimately found that the presumption of equal shared parental responsibility did not apply in this case.
The court ordered that all previous parenting orders be discharged and that the mother have sole parental responsibility for the children, with the children to live with her. The father was granted supervised time with the children, with the nature and duration of this supervision to change over time as the younger child approached the age of 10. The orders also included specific restraints on both parents, including prohibitions against denigrating the other parent, discussing proceedings in the children's presence, using physical discipline, and the father taking photos of the children in a state of undress or consuming alcohol when in their care. The court also made detailed orders regarding property division, including the transfer of properties and payment of sums between the parties.
Orders
Orders of the court
Parenting
1.
All previous parenting orders in relation to the children, B, born … 2007, and C, born … 2010 (collectively “the children”) be discharged.
2.
The mother have sole parental responsibility for the children.
3.
The children live with the mother.
4.
Until the younger child attains the age of 10 years old, the children are to spend supervised time with the father as follows:
4.1. from after school (or 3.00 pm on a non-school day) until 8.00 pm each Friday; and,
4.2. on the first, third and fourth Sunday of each month, from 10.00 am until 4.00 pm.
4.3. Such time is to be supervised by J Organisation or such other person or organisation that the parties agree to in writing; and,
4.4. Subject to Order (4.5), the cost of supervision is to be paid for by the father.
4.5. In the event of there being an additional charge in respect to the preparation of written reports of the supervised time that the children spend with the father the mother shall meet that additional cost.
5.
Upon the younger child attaining the age of 10 years, the children are to spend unsupervised time with the father as follows:
5.1. For a period of four months;
5.1.1. On each Friday from after school (or 3.00 pm on a non-school day) until 7 pm;
5.1.2. On the first, third and fourth Saturday of each month, from 9.45 am until 4.45 pm;
5.1.3. The father is to collect the children at the conclusion of school on Fridays during school terms and return them to the F Police Station. On Fridays during school holidays, the father is to collect the children from CatholicCare City F and return them to F Police Station. All Saturday changeovers are to take place at CatholicCare City F.
5.1.4. The costs of the changeover service at CatholicCare City F are to be paid by the father.
5.2. Thereafter, for a period of 4 months:
5.2.1. On first, third and fourth weekend of each month, from after school on Friday (or 3.00 pm on a non-school day) until 4.45 pm on Saturday;
5.2.2. The father is to collect the children at the conclusion of school on Fridays during school terms, and otherwise all changeovers on non-school days are to take place at CatholicCare City F;
5.2.3. The costs of the changeover service at CatholicCare City F are to be paid by the father.
5.3. Thereafter, for a period of 4 months:
5.3.1. On each alternate weekend, from after school on Friday (or 10 am during a non-school day) until 4.45 pm on Sunday;
5.3.2. In each other week, from after school on Wednesday until before school on Thursday, except during school holiday periods;
5.3.3. The father is to collect the children from school at the commencement of his time, and return the children to school at the conclusion of his time, except on non-school days when changeovers are to occur at CatholicCare City F;
5.3.4. The costs of the changeover service at CatholicCare City F are to be paid for by the father.
5.4. Thereafter:
5.4.1. During school terms:
5.4.1.1. On each alternate weekend from after school on Friday until before school on Monday;
5.4.1.2. In each other week from after school on Wednesday until before school on Thursday;
5.4.2. During school holidays:
5.4.2.1. For one half of each NSW school holiday period, being the first half in even numbered years and the second half in odd numbered years.
5.4.3. The father is to collect the children from school at the commencement of his time, and return the children to school at the conclusion of his time, except on non-school days when changeovers are to occur at Suburb M McDonalds or such other location agreed between the parties in writing.
5.5. At such other times as agreed between the parties in writing.
6.
By no later than 1 March 2020, each party is to contact CatholicCare City F and do all acts and things necessary, including completing all intake assessments, to enable changeover to take place at that service.
7.
Each party be and hereby is restrained from:
7.1. Denigrating the other, or any member of the other’s family, to or in the presence or hearing of the children.
7.2. Discussing these proceedings, or any of the issues raised in these proceedings, with the children or in their presence or hearing;
7.3. Using physical discipline on either of the children;
7.4. Taking the children (or either of them) to any counsellor, psychologist or psychiatrist, other than the therapist appointed pursuant to the orders made on 16 August 2016 (“the Therapist”), unless the counsellor, psychologist or psychiatrist has been approved by the Therapist.
8.
The father be and hereby is restrained from:
8.1. Taking photos or videos of either of the children in full or partial state of undress;
8.2. Consuming alcohol during periods when the children are in his care.
9.
Each party be and is authorised by these Orders:
9.1. To request and receive information from the children’s school(s) in relation to their educational progress, including copies of school reports and general school newsletters;
9.2. To request and receive information from any medical practitioner providing treatment to either of the children in relation to the children’s health care.
10. Each party shall forthwith set up a dedicated email address for the purposes of communicating with each other in relation to parenting matters only, and shall forthwith advise the other party of such address.
11. In the event of any dispute in the future in relation to a major long term issue concerning either of the children, the parties shall attend upon a family dispute resolution service to attempt to resolve that issue by agreement before commencing further Court proceedings, except in circumstances of urgency.
12.
That each party pay their share of the Independent Children’s Lawyer’s costs in the sum of $15 372.50 within 28 days of the date of these Orders.
Property
13.
That within three (3) months of the date of these Orders, the wife is to do all acts and things and sign all documents necessary to:
13.1. discharge the mortgage to ANZ Bank registered on the Suburb YY property (dealing …6L) in respect of which the mother is sole mortgagor;
13.2. simultaneously with Order 13.1 above, transfer to the husband all her right, title and interest in the property situate at and known as Melbourne Suburb YY in the State of Victoria (“the YY property”);
13.3. pay to the husband, or as he may direct in writing, the sum of $263,569; and
13.4. do all acts and things and sign all documents necessary to transfer to the husband registration and ownership of Ford Vehicle ….
14.
Subject to Order (17) below, simultaneous with the wife’s compliance with Order (13) above:
14.1. Within three (3) months of the date of these Orders, the husband is to vacate the L property leaving it in good order and condition.
14.2. The wife be declared the sole owner in law and equity of the property situate at and known as K Street, Suburb L in the State of New South Wales (“the L property”) and the wife is to indemnify and keep the husband indemnified in respect the ANZ Bank mortgage registered on the L property (dealing …6B).
15.
In the event that the parties are unable to reach agreement regarding the division of household contents, including furniture, located at any of the property that they own or rent, that item or those items shall be listed for sale in a manner agreed by the parties and the proceeds divided equally.
16.
In the event that the parties decide to sell any item or items of household content or furniture pursuant to order (15), but are unable to agree on the person or organisation to sell any such item or items, the husband shall provide the wife with a list of three appropriately qualified individuals or organisations and the wife shall select a person or organisation from that list of names.
The Alternative
17.
In the event that the wife does not comply with Order (13) above, the parties are each to submit a proposed Minute of Order to my chambers within fourteen (14) days of the wife’s failure to comply with Order (13), setting out their proposal for:
17.1. The sale of the L property;
17.2. The division of the proceeds of sale (after payment of the costs of the sale and a payment to the husband in the sum of $210,091.40) to reflect the Court’s determination of the proceedings.
18.
Other than as provided for in these Orders, each party shall retain free from any claim from the other party all other property, furniture, furnishings, savings, businesses, motor vehicles, superannuation entitlements and other financial resources currently in that parties name, possession or control as at the date of these Orders and each party shall also indemnify the other party in relation to any liabilities or debts payable by that party as at the date of these Orders and keep such party indemnified from any such claim.
19.
In default of either party doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Family Court of Australia at Sydney be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to said Orders.
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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