Federal Circuit and Family Court of Australia
(DIVISION 1)
Staley & Birch [2022] FedCFamC1F 494
File number: CAC 1456 of 2017 Judgment of: GILL J Date of judgment: 13 July 2022 Catchwords: FAMILY LAW – PARENTING – Where the father seeks sole parental responsibility for the child – Where both the mother and father are impacted by mental health issues – Where expert recognised that father had taken active steps to address mental health issues, whereas mother has limited insight into her conditions and taken minimal steps to receive support – Where mental health of parties has bearing on the capacity of the parents to care for their child – Where the relationship between parents has been marked by mutual acts of violence – Consideration of best interests of the child, particular regard for facilitation of meaningful relationship between both parents – Orders made for the father to have sole parental responsibility and for child to spend time with the mother.
FAMILY LAW – PROPERTY – Settlement in relation to end of de-facto relationship which exceeded six years – Assessment of contributions made by mother and father – Where there are cross allegations of family violence – Where mother seeks application of Kennon principle – Where mother was incarcerated for shooting the father – Where mother alleged her contributions were made arduous due to her incarceration – Where responsibility for those contributions being rendered more arduous falls upon the mother rather than the father.
Legislation: Family Law Act 1975 (Cth) Part VIIIAB, ss 60B, 60CA, 60CC, 65DAA, 90SF Cases cited: Benson & Drury (2020) 62 Fam LR 1
Bevan v Bevan (2013) 49 Fam LR 387
Britt v Britt (2017) 56 Fam LR 526
Dickons v Dickons (2012) 50 Fam LR 244
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143
Kennon v Kennon (1997) FLC 92-757
Kowaliw & Kowaliw (1981) FLC 91-092
Jollie & Dysart [2014] FamCAFC 149
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
Omacini & Omacini (2005) FLC 93-218
Phillips & Hansford(No 2) (2019) 60 Fam LR 160
Stanford v Stanford (2012) 247 CLR 108
Sweet & Sweet [2022] FedCFamC2F 676
Trevi & Trevi (2018) FLC 93-858
Division: Division 1 First Instance Number of paragraphs: 352 Date of hearing: 24–28 May 2021 Place: Canberra Counsel for the Applicant: Ms Warwick Solicitor for the Applicant: Pyrmont Legal Counsel for the Respondent: Mr Connor Solicitor for the Respondent: Neilan Stramandinoli Family Law Solicitor for the Independent Children’s Lawyer: Legal Aid, ACT ORDERS
CAC 1456 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR STALEY
Applicant
AND: MS BIRCH
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
13 July 2022
THE COURT ORDERS THAT:
PARENTING
1.All previous orders concerning the child, X, born in 2012 (“X”) are discharged.
2.Mr Staley, (“the father”), has the sole parental responsibility for X.
3.X shall live with the father.
4.Unless otherwise agreed in writing, that…
Continue reading Staley & Birch
Sign in free to access the full text
- AGLC
- Staley & Birch [2022] FedCFamC1F 494
- Case
- [2022] FedCFamC1F 494
- Decision Date
CaseChat Overview and Summary
The court found that the father had taken active steps to address his mental health issues, while the mother had limited insight into her conditions and had taken minimal steps to receive support. The court also noted the history of violence between the parties. Considering the best interests of the child, the court ordered that the father have sole parental responsibility, but the child would spend time with the mother according to a specified schedule. The court then turned to the property settlement, assessing the contributions made by each party. The mother alleged that her contributions were made more arduous due to her incarceration, but the court found that the responsibility for those contributions being rendered more arduous fell on the mother rather than the father.
The court ordered that each party retain their superannuation, and that the adjustment sought was only in respect of the non-superannuation property pool. The final orders were that the net proceeds of the sale of the parties' property be disbursed between the father and mother, with each party retaining their superannuation and other specified property. The court found that the result was just and equitable, taking into account the circumstances of the parties.
The final orders of the court included parenting arrangements for the child, with the father having sole parental responsibility and the child spending time with the mother according to a specified schedule. The property settlement involved the disbursement of the net proceeds of the sale of the parties' property between the father and mother, with each party retaining their superannuation and other specified property. The court also ordered that the parties take steps to ensure that the accounts containing the shares and monies were operable solely by the father and that the mother deliver a motor vehicle to the father within 7 days of the orders. The mother was solely responsible for certain liabilities, while the father was responsible for others.
Orders
Orders of the court
CAC 1456 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR STALEY
Applicant
AND:
MS BIRCH
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
13 July 2022
THE COURT ORDERS THAT:
PARENTING
1. All previous orders concerning the child, X, born in 2012 (“X”) are discharged.
2. Mr Staley, (“the father”), has the sole parental responsibility for X.
3. X shall live with the father.
4. Unless otherwise agreed in writing, that X spend time with Ms Birch (“the mother”) as follows:
(a) During X’s school term time, for each alternate weekend (commencing on the first weekend after school resumes) from after school Thursday to the commencement of school on the following Monday and if a long weekend then return on the following school day;
(b) For half of each term school holiday period commencing on the Friday after the last day of school term until 5.00 pm on the Saturday closest to the midpoint of any school holiday;
(c) The second half of the December/January school holiday period in even numbered years and the first half of the December/January school holiday period in odd numbered years, with handover to occur on the Saturday closest to the midpoint of the holiday period at 5.00 pm;
5. For X’s birthday, in the event that he is not otherwise, pursuant to these orders, spending time with both parents, X shall spend from after school (or 3 pm on a non-school day) until 7.30pm with the parent that he is not otherwise spending time with, or as otherwise agreed in writing.
6. Changeover shall take place at the child’s school on school days and at the D Service Station, Suburb B on non-school days or as otherwise agreed in writing.
7. Should X require emergency treatment, including admittance to hospital, the parent whose care X is in shall advise the other parent as soon as practicable.
8. The father is restrained from physically disciplining X.
PROPERTY
9. The net proceeds of sale of the parties’ property currently held in the trust account of Q Solicitors of $1,030,117.91 be disbursed in the following manner:
(a) In the sum of $713,794 to the father;
(b) The balance of $316,324 to the mother.
10. Except and otherwise provided for in these Orders, the mother shall retain her right, title and interest, and be as against the father, the sole legal and beneficial owner of the following:
(a) Any savings in her name;
(b) Any furniture and effects in her possession, custody or control;
(c) Her superannuation benefits and entitlements;
(d) All other property currently in her possession, custody or control.
11. Except as otherwise provided for in these Orders, the father shall retain his right, title and interest, and be as against the mother, the sole legal and beneficial owner of the following:
(a) His Motor Vehicle 2;
(b) His Motor Vehicle 3;
(c) His Motor Vehicle 5;
(d) Any savings in his name;
(e) Monies in the parties’ joint account;
(f) The DD Company Shares;
(g) The BB Company shares;
(h) His EE Company shares;
(i) Any furniture and effects in his possession, custody or control;
(j) His superannuation benefits and entitlements; and
(k) All other property currently in his possession, or control.
12. The parties shall forthwith take all steps and execute all documents to cause the accounts containing the shares and monies referred to in the immediately preceding order to be operable solely by the father.
13. The mother cause the Motor Vehicle 3 to be delivered to the father within 7 days of these orders.
14. Except as otherwise provided for in these Orders, the mother shall be solely responsible for and shall indemnify the father in relation to all liabilities in her sole name and for the Commonwealth Bank Credit Card.
15. Except as otherwise provided for in these Orders, the father shall be responsible for and shall indemnify the mother in relation to all liabilities in his sole name and for the debt owed to the RR childcare facility.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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
Ratio Decidendi
Legal Principle Established
While the mother also asserted that she made superior contributions from the commencement of the relationship until she was incarcerated, this was based in part upon the notion that the money paid to her by the father following the commencement of cohabitation as described above had an ongoing benefit in the reduction of interest payments. I am unable to give this aspect the double contribution effect contended for by the mother. The mother also asserted that her contributions were greater than the father’s following X’s birth, when the father often spent long hours away from the home. However, her various contributions as they related to the care of X and conduct of the business could not be said to be superior to those of the father, as he undertook paid employment, cared for X and contributed to the property. While their roles were distinct, this did not render the mother’s contributions as superior to his, nor his as superior to her, at least prior to the mother’s incarceration. The period following the shooting and separation By the time of the parties’ separation and mother’s imprisonment in August 2015, the balance owing on the mortgage for the property was approximately $370,000. The offset account also held approximately $370,000, completely offsetting the mortgage. An amount of $50,000 was also held in the ING account, and there were shares held of approximately $24,000. This marked an apparent high point in the parties’ property position, their position deteriorating from here as each drew upon the property pool of the parties for various purposes. For a period following the shooting, the father was unemployed, later resuming employment. He drew living expenses from the property offset account.[95] During the period that the mother was in prison, the father’s contributions involved the sole care of X, taking steps in preserving and promoting an ongoing relationship between X and the mother by taking X regularly to see the mother, as well as having the sole upkeep of the property. While the mother submitted that the father had the occupation of the property, this carried with it the upkeep of the property, each offsetting the other. [95] Transcript 25 May 2021, p.169 lines 27–34. During the mother’s incarceration, $180,000 in legal fees for the criminal proceedings were paid for the mother. The father described that these were sourced from the ING account and the offset account. In August 2016, the father resumed work. By the time that the mother was released from custody, the property mortgage account (then at $334,000) exceeded the offset account by approximately $164,000. Shares were still held of $26,000. The $50,000 that was held in the ING account had also been applied toward the legal fees. The mother agrees that she did not immediately return to work following the release from prison, and in the period following her release and leading up to February 2017, withdrew from the joint account $51,000. In November 2016, the mother was able to move back onto the property by virtue of an amendment to the AVO. Although she moved back, the parties did not reconcile.