Somerville and Somerville and Anor (No.3) - [2015] FCCA 2223

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOMERVILLE & SOMERVILLE & ANOR (No.3) [2015] FCCA 2223

Catchwords:
FAMILY LAW – Parenting and property – where the Department of Family and Community Services intervened – where significant levels of personality dysfunction in the mother – where significant allegations of violence and abuse – where highly inappropriate conduct by the father in the presence of the children – where the mother’s evidence is plainly unreliable – issues about monies provided by the maternal grandmother and how they should be characterised.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 67ZC 68B, 75(2), 79, 90MT(1)(a), 91B

Bevan & Bevan [2013] FamCAFC 116
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395
MRR v GR [2010] HCA 4
Somerville & Somerville & Anor [2014] FCCA 695
Somerville & Somerville & Anor (No.2) [2014] FCCA 2439
Stanford & Stanford [2012] HCA 52

Applicant: MR SOMERVILLE

Respondent: MS SOMERVILLE

Intervenor: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

File Number: WOC 1043 of 2012

Judgment of: Judge Altobelli

Hearing dates: 10-14 November 2014, 5 May 2015

Date of Last Submission: 5 June 2015

Delivered at: Wollongong

Delivered on: 9 November 2015
REPRESENTATION

Counsel for the Applicant: Ms Beck

Solicitors for the Applicant: Rita Thakur & Associates

Counsel for the Respondent: Ms Gillies

Solicitors for the Respondent: Rossi Simicic Lawyers

Counsel for Intervenor: Mr Anderson

Solicitors for the Intervenor: Crown Solicitors Office

Counsel for the Independent Children's Lawyer: Mr Macpherson

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS
Parenting
(1)The Father is to have sole parental responsibility for the Children [X] (born 2006), [Y] (born 2005), [W] (born 2003), and [Z] (born 2012) (the ‘Children’).
(2)The Children are to live with the Father.
(3)Until each Child attains the age of 16, the Mother is restrained from:
(a)spending any time with any of the Children except as set out in Orders 7, 8, 9, 10, 14, 15, 16, 17, 18 & 19.
(b)approaching, communicating or contacting by any means, including through any third person, any of the Children except as provided for in orders 5, 6, 7, 8, 9, 10, 14, 15, 16, 17, 18 & 19.

(4)Until each Child attains the age of 18, the Mother is restrained from:
(a)being within 200 metres of any place of education or residence of any of the Children and contacting by any means, including through any third person, any place of education or residence of any of the Children; and
(b)removing or attempting to remove any of the Children from his or her place of education or residence; and
(c)harassing, molesting, stalking, threatening to cause bodily harm to any of the children or any person in whose care any of the Children may be; and
(d)uploading information regarding these proceedings on any internet web site.

(5)The Mother is at liberty to communicate with the Children by sending letters or cards to the Children on or around each Child's birthday, Chinese New Year and Christmas.
(6)The…

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.

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Details

Case: [2015] FCCA 2223
Decision Date: 9 November 2015

CaseChat Overview and Summary

This matter concerned parenting and property disputes between the Father and the Mother, heard by Judge Altobelli. The primary dispute revolved around the future care and living arrangements for the parties' four children, born between 2005 and 2012. Additionally, the court was required to determine the division of various assets and liabilities between the parties.

The court was tasked with determining the most appropriate parenting orders, specifically regarding parental responsibility, the children's residence, and the extent and nature of the Mother's contact with the children. In relation to property, the court had to decide on the division of real estate, including a jointly owned property and a time-share, as well as motor vehicles, superannuation interests, and outstanding financial liabilities and payments, including spouse maintenance.

In making its parenting orders, the court determined that the Father should have sole parental responsibility for the children and that they should live with him. The Mother was significantly restrained from spending time with or contacting the children, with limited exceptions for supervised contact for older children and unsupervised contact for those aged 16 and over, subject to specific conditions and requests. The court also made orders regarding the communication of information about the children between the parents and imposed restrictions on the Mother concerning the children's passports and international travel. The property orders involved the Father refinancing a mortgage and taking sole ownership of one property, the sale of another property with proceeds divided, and the transfer of a time-share to the Mother. The court also allocated specific assets and liabilities to each party and ordered the division of a superannuation interest.

Orders

Orders of the court

Parenting

(1) The Father is to have sole parental responsibility for the Children [X] (born 2006), [Y] (born 2005), [W] (born 2003), and [Z] (born 2012) (the ‘Children’).

(2) The Children are to live with the Father.

(3) Until each Child attains the age of 16, the Mother is restrained from:

(a) spending any time with any of the Children except as set out in Orders 7, 8, 9, 10, 14, 15, 16, 17, 18 & 19.

(b) approaching, communicating or contacting by any means, including through any third person, any of the Children except as provided for in orders 5, 6, 7, 8, 9, 10, 14, 15, 16, 17, 18 & 19.

(4) Until each Child attains the age of 18, the Mother is restrained from:

(a) being within 200 metres of any place of education or residence of any of the Children and contacting by any means, including through any third person, any place of education or residence of any of the Children; and

(b) removing or attempting to remove any of the Children from his or her place of education or residence; and

(c) harassing, molesting, stalking, threatening to cause bodily harm to any of the children or any person in whose care any of the Children may be; and

(d) uploading information regarding these proceedings on any internet web site.

(5) The Mother is at liberty to communicate with the Children by sending letters or cards to the Children on or around each Child's birthday, Chinese New Year and Christmas.

(6) The Children are at liberty to communicate with the Mother by sending letters or cards to the Mother in or around the Mother's birthday, Mother's Day, Chinese New Year and Christmas AND the Father is to ensure that letters or cards written by the Children are sent to an address provided by the Mother from time to time.

(7) When each Child turns 14 and up until that Child turns 16, that Child can spend supervised time with the Mother on 4 occasions each year for a minimum of 3 hours in February, May, August and December.

(8) Where more than one Child has turned 14, the Children's supervised time with their mother in accordance with Order 7 should occur simultaneously.

(9) When each Child turns 14, the Mother is at liberty to write to the Father to request to spend supervised time with that Child and the Father is to write to the Mother within 7 days of receiving the Mother's written request, and the Father is to provide the Mother with a list of suitable dates for that Child or Children to spend time with the Mother in February, May, August and December.

(10) Upon receiving written notification from the Father of suitable dates for each Child or Children to spend supervised time with the Mother, the Mother is to do the following:

(a) arrange for her time to be supervised by an agency that can prepare a report of her supervised time and one that is local to where the Children are residing from time to time such as Care South or CatholicCare (the Agency);

(b) provide details about the Agency to the Father, including any costs that will be incurred to supervise the Mother's time;

(d) arrange for 3 hours supervised time to occur on a date as nominated by the Father in accordance with Order 9;

(e) arrange for her time to occur at a suitable public venue that is within a 20 km radius from the Child or Children's home;

(f) notify the Father of the date, time and venue for each occasion any Child or Children is/are to spend time with the Mother at least 7 days before each contact/occasion;

(g) arrange for employees from the Agency where possible to collect the Child or Children from the Father's home 30 minutes before the mother's scheduled time , take the child or children to the nominated venue and then return the child or children to the father's home at the conclusion of her time with the child or children; and

(h) notify the Father of a changeover location at a suitable public venue that is within a 20km radius from the Child or Children's home where transport cannot be facilitated by the Agency.

(11) Where the Mother requests to spend supervised time with a Child or Children in accordance with Order 9, the Father is to complete all necessary documentation as required by the Agency.

(12) Where the Mother is unable to arrange for transportation of the Children to be facilitated by the Agency and she notifies the Father of this in accordance with Order 10(h), the Father is to ensure that any Child or Children due to spend time with the Mother are delivered to and collected from the nominated changeover location by the Father or his delegate.

(13) Any costs for supervised time as permitted under Order 7 are to be shared equally between the Father and Mother, and the Mother is to arrange for a separate invoice to be sent to the Father by the Agency as required by the Agency for each occasion that any Child or Children are to spend time with the Mother.

(14) When each Child turns 16, that Child can request to spend unsupervised time with their mother from 10:00am until 5:00pm on the first Sunday of each month.

(15) Where more than one Child has turned 16, the Children's unsupervised time with their mother in accordance with Order 14 should occur simultaneously.

(16) If any of the Children request to spend unsupervised time with their mother after they turn 16, the Father is to send a letter to the Mother advising her of this request.

(17) Where the Mother receives a letter from the Father advising her that any of the Children wish to spend unsupervised time with the Mother after they have turned 16, the Mother is to send a letter to the Father advising him whether or not she is prepared to spend unsupervised time with the Children.

(18) Where the Mother has agreed to spend unsupervised time with any of the Children, the Mother is to do the following:

(a) arrange a changeover location at a suitable public venue that is no more than a 20 km radius from the Child or Children's home;

(b) arrange a suitable public venue for the Child or Children to spend time with the Mother that is within a 20km radius from the Child or Children's home;

(c) notify the Father of the changeover location and venue for each occasion a Child or Children is/are to spend time with the Mother at least 7 days before each meeting.

(19) To facilitate unsupervised time in accordance with Order 14, the Father or his delegate is to deliver the Child or Children to the changeover location nominated by the Mother at the commencement of the Mother's time with the Child or Children and then collect the Child or Children from the same location at the conclusion of the Mother's time with the Child or Children.

(20) The Father is to ensure that the Mother is notified about important issues regarding the Children's health and schooling.

(21) The Father is to provide the following to the Mother:

(a) copies of all school reports for each child;

(b) school photos for each child if available; and

(22) The Mother and Father are to keep each other advised of their email address and residential address from time to time.

(23) The Mother and Father are to provide each other with a telephone number that can be used in the case of an emergency only.

(24) The Father shall not consume alcohol during any period that the children are in his care.

(25) The Father be restrained from using any physical punishment or discipline on the Children and he do all things necessary to ensure that any other person whom is entrusted with the care of the Children be restrained from using any physical punishment or discipline on the Children.

(26) Both parents be restrained from:

(a) speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Children.

(b) discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Children or permitting any other person to do so.

(27) The Father is at liberty to provide a copy of any Final Orders and Judgment arising out of these proceedings to his treating therapist and to the Children's treating therapist/s.

(28) The Mother is at liberty to provide a copy of any Final Orders and Judgment arising out of these proceedings to her treating psychiatrist and treating therapist.

(29) The Mother shall be hereby restrained from:

(a) applying for a Passport in the name of any of the Children;

(b) applying for a Passport in the name of herself and any of the Children;

(30) The Mother shall forthwith surrender the Passport of each of the Children to the Father if she has not already done so.

(31) Pursuant to ss.68B and 67ZC, the Mother is hereby ordered to forthwith remove or caused to be removed from Facebook, or any other social media or web sites and applications, any references to the Children, their caseworkers, the legal representatives, or the experts who have appeared, given evidence in or are connected to these proceedings.

(32) Pursuant to ss.68B and 67ZC, the Mother is hereby restrained by injunction from:

(a) Publishing or posting by any means to any web applications and accessible internet sites including but not restricted to social media, (for example such as Facebook, Pinterest, Tumblr, Flickr, Digg, Dribble, LinkedIn, Tagged, and StumbleUpon), any material including text, photos, visual representations or audio files which identify the Children or references to the Children, their caseworkers, the legal representatives or the experts who have given evidence in or connected to these proceedings without first obtaining an order of the Court to permit her to do so.

(b) Disseminating in any way material utilised in these proceedings including but not limited to reports, affidavits, transcripts, subpoena documents, memoranda and notes.

(33) The Independent Children’s Lawyer’s application for costs be dismissed.

Property

(34) Within 60 days, the Father shall do all acts and things and sign all necessary documents so as to discharge the mortgage in respect of [1] Property M (being the whole of the land contained in certificate of title folio identifier [omitted]), and refinance the mortgage into his sole name, and the Father shall otherwise indemnify and keep the Mother indemnified against any and all other liabilities relating to that property including but not limited to the payment of rates, taxes, mortgage repayments and insurances.

(35) Within 60 days and subject to the Father refinancing the mortgage in his sole name, the Mother shall do all acts and things to transfer to the Father her entire right title and interest in the property at [1] Property M (being the whole of the land contained in certificate of title folio identifier [omitted]) and the Mother shall be restrained from removing from this property, the furniture, white goods and desks.

(36) Within 7 days, the net sale proceeds arising from the sale of the property situate at [2] Property M (currently held on trust by CVC Law) be divided as follows:

(a) $444,738 to the Mother; and

(b) That any interest accrued on the invested amount until the date the account is closed shall be divided equally between the parties.

(37) Within 30 days, the Father pay to the Mother into her nominated account the sum of $1,267.50.

(38) Within 60 days, the Father pay to the Mother into her nominated account outstanding spouse maintenance in the sum of $10,800, together with interest calculated in accordance with the Family Law Act, its Rules and Regulations.

(39) The Father do all acts and sign all documents necessary to transfer to the Mother his entire right title and interest in the parties jointly owned time share known as Property R, and the Mother shall otherwise indemnify and keep the Father indemnified against any and all outstanding liabilities relating to that property.

(40) The Father shall be the sole owner of and solely responsible for:

(a) the furniture contained in [1] and [2] Property M;

(b) the [S] motor vehicle (registration number: [omitted]);

(d) any funds contained in the Father’s Commonwealth Bank Account (a/c [omitted]);

(e) the mortgage against the property at [1] Property M.

(41) The Mother shall be the sole owner of and solely responsible for:

(a) the time share known as Property R;

(b) the 1998 Holden Rodeo;

(d) any and all arrears owed in respect of the time share known as Property R.

(42) The base amount allocated to Ms Somerville, the non-member spouse in these proceedings, out of the interest held by Mr Somerville in [B] Super is $125,000.00.

(43) Pursuant to s.90MT(1)(a) of the Family Law Act 1975, whenever the Trustee of the [B] Super makes a splittable payment from the interest held by Mr Somerville member number: [omitted], the Trustee shall pay to Ms Somerville or her administrators, executers beneficiaries, heirs or assigns the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement Mr Somerville would have had in the [B] Super but for these Orders.

(44) Order 43 have effect from the operative time and the operative time shall be deemed to be 2 weeks from the date when these Orders are served upon the Trustee.

(45) This Order binds the Trustee of [B] Super.

(46) Except as otherwise set out in these Orders, the parties have the sole right, title and interest in any other property which is at the date hereof in their possession or control and they shall be solely liable for and indemnify the other against any and all personal liabilities.

(47) In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to s.106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

(48) The Mother’s application for spouse maintenance be otherwise dismissed.

(49) Leave be granted to the parties to relist this matter before me on 7 days notice as regards interpretation, implementation or enforcement of these Orders.

NOTATIONS

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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