Stone & Stone & Anor - [2015] FamCA 14

FAMILY COURT OF AUSTRALIA

STONE & STONE AND ANOR

[2015] FamCA 14

FAMILY LAW – PROPERTY – Final – Where the wife is bankrupt – Where the official trustee in bankruptcy did not intervene in the proceedings – Where property adjustment issues were not a significant part of the trial – Order that the husband retain all his personal property and superannuation interests – Order that the wife indemnify the husband against any and all liability to her parents

FAMILY LAW – CHILDREN – Final – Best Interests – Where the children lived with the mother following separation – Where the mother and the maternal grandparents refused to let the children spend time with the father despite Court orders providing for contact – Where the children are at an unacceptable risk in the care of the mother and the maternal grandparents – Where interim orders were made during the course of the trial that the children live with the father and have no contact with the mother or maternal grandparents – Where the children thrived in the father’s care – Order that the children live with the father – Order that the father has sole parental responsibility for the children

Family Law Act 1975(Cth)

APPLICANT:

Mr Stone

RESPONDENT:

Ms Stone

INTERVENER:

Ms S Stone

INDEPENDENT CHILDREN’S LAWYER:

Gary Couper

FILE NUMBER:

BRC

1645

2011

DATE DELIVERED:

22 January 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

15, 16, 17 & 18 April and 21, 22 & 23 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Umashev of Counsel
(on 15, 16, 17 & 18 April only)

SOLICITOR FOR THE APPLICANT:

JMW Legal

(on 15, 16, 17 & 18 April only)

FOR THE APPLICANT:

The Applicant in Person
(on 21, 22 & 23 October only)

FOR THE RESPONDENT:

The Respondent in Person
(on 15, 16, 17 & 18 April only)

COUNSEL FOR THE RESPONDENT:

Ms Wardle of Counsel

(on 21, 22 & 23 October only)

SOLICITOR FOR THE RESPONDENT:

Lynch & Associates

(on 21, 22 & 23 October only)

FOR THE INTERVENER:

The Intervener in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carmody of Counsel

THE INDEPENDENT CHILDREN’S LAWYER:

Mr Couper of Couper Geysen Family & Animal Law

Orders

Parenting

That all previous parenting orders, save for those made by this Court on 10 December 2014 and those contained within paragraphs 5 and 6 of the Orders made by this Court on 18 April 2013, are discharged.
That the children, B born … 2005 and C born … 2006, (“the children”) live with the father.
That the father has sole parental responsibility for the children.
That the father shall keep the mother informed in writing on a monthly basis of the children’s health, their educational progress and their extra-curricular activities, but with the father to be at liberty to take all steps necessary not to provide any information that identifies the place of residence of the children, any school that they attend…

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 Stone & Stone & Anor

Details

AGLC: Stone & Stone & Anor [2015] FamCA 14
Case: [2015] FamCA 14
Decision Date: 22 January 2015

CaseChat Overview and Summary

In the matter of *Stone & Stone & Anor*, Forrest J of the Family Court of Australia considered parenting and property adjustment issues between the husband and wife. The wife was bankrupt, and the official trustee in bankruptcy had not intervened in the proceedings. The property adjustment issues were not a significant focus of the trial.

The court was required to determine the best interests of the children, who had been living with the mother following separation. The mother and maternal grandparents had refused to allow the children to spend time with the father, despite existing court orders for contact. Interim orders had been made during the trial placing the children with the father and prohibiting contact with the mother or maternal grandparents, during which period the children reportedly thrived. The court also had to address the division of property, including the husband's personal property and superannuation, and the wife's potential liabilities to her parents.

Forrest J reasoned that the children were at an unacceptable risk in the care of the mother and maternal grandparents, based on their refusal to comply with court orders and facilitate contact with the father. Applying the paramountcy principle of the children's best interests, the court ordered that the children live with the father and that he have sole parental responsibility. The court further ordered that the father retain all his personal property and superannuation interests. The wife was ordered to indemnify the father against any liability to her parents.

Orders

Orders of the court

Parenting

That all previous parenting orders, save for those made by this Court on 10 December 2014 and those contained within paragraphs 5 and 6 of the Orders made by this Court on 18 April 2013, are discharged.

That the children, B born … 2005 and C born … 2006, (“the children”) live with the father.

That the father has sole parental responsibility for the children.

That the father shall keep the mother informed in writing on a monthly basis of the children’s health, their educational progress and their extra-curricular activities, but with the father to be at liberty to take all steps necessary not to provide any information that identifies the place of residence of the children, any school that they attend from time to time or any other place at which the children may be found from time to time.

That the children shall spend no time with the mother nor have any communication with her other than as provided for in these Orders.

That the mother is at liberty to send letters, cards and presents to the said children by posting them to the father at the post office box address provided by him from time to time with the father to be at liberty to open such letters, cards and presents prior to giving them to the children and to determine if the contents are suitable to be given to the children and if he determines that the contents are not suitable to be given to the children he shall copy or take a note of the contents and cause the letter, card or present to be returned to the mother.

That the children shall spend no time with either of the maternal grandparents nor have any communication with either of them other than as provided for in these Orders.

That the maternal grandmother is at liberty to send letters, cards and presents to the children by posting them to the father at the post office box address provided by him from time to time with the father to be at liberty to open such letters, cards and presents prior to giving them to the said children and to determine if the contents are suitable to be given to the children and if he determines that the contents are not suitable to be given to the children he shall copy or take a note of the contents and cause the letter, card or present to be returned to the maternal grandmother.

That should the children or either of them wish to write a letter or a card or send a present to the mother or the maternal grandparents, the father shall facilitate that by informing them they are able to do that if they want to and by causing any such letters, cards or presents that he determines are suitable to be sent to the address of the mother or the maternal grandparents that has been provided to him by the mother and the maternal grandmother.

10.

It is requested that the Australian Federal Police give effect to paragraph 5 of the Orders made by this Court on 18 April 2013 by maintaining the said children’s names on the Airport Watch List for a period expiring on the 18th day of April 2019 and upon expiration of that period and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watch List.

Property

11.

That the father shall retain as his sole property absolutely all items of personal property currently in his possession or control and he shall retain as his absolutely any superannuation interest in his name.

12.

That the mother shall indemnify the father against any and all liability to her parents or either of them, howsoever arising.

Other

13.

That the Independent Children's Lawyer is discharged.

14.

That all other outstanding applications are dismissed.

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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