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Sweet & Sweet

Sweet & Sweet

Case [2022] FedCFamC2F 676 27 May 2022

Best Interests of the Child

Family Violence

Mental Health

Substance Abuse

Parental Responsibility

Property Settlement

Superannuation

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sweet & Sweet [2022] FedCFamC2F 676

File number(s): MLC 4622 of 2021

Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND

Date of judgment: 27 May 2022

Catchwords:
FAMILY LAW – PARENTING – Best interests of the child – Whether the children should spend time with the applicant father – Whether an order of equal or sole parental responsibility should be ordered – Where the father has significant mental health and substance abuse issues – Where there are allegations of family violence – Orders made for the mother to have sole parental responsibility and for the children to spend no time with the father until he has addressed his mental health and substance abuse issues.

FAMILY LAW – PROPERTY – Settlement in relation to a marriage – Assessment of contributions – The impact of family violence – Adjustment made pursuant to the Kennon principle – Adjustments made to consider future needs of mother due to sole parental responsibility – Orders made for 70 per cent adjustment in favour of the mother and 30 per cent adjustment to the father.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79

Cases cited:
A v A (1998) FLC 92-800; [1998] FamCA 25

B and B (1993) FLC 92-357; [1993] FamCA 143

Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

Blinko & Blinko [2015] FamCAFC 146

Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27

C and C (2005) FLC 93-220; [2005] FamCA 429

Cotton & Cotton (1983) FLC 91-330

Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5

DJM & JLM (1998) FLC 92-816; [1998] FamCA 97

Dovgan & Dovgan [2021] FamCA 306

Drewett & Drewett [2012] FamCA 320

Efthimiadis & Efthimiadis (1993) FLC 92-361; [1993] FamCA 15

G & C [2006] FamCA 994

Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236

Goddard Elliott v Fritsch [2012] VSC 87

Graf-Salzmann & Graf [2015] FCWA 68

Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143; [2003] FamCA 395

Hughes v Egger [2005] NSWSC 18

Jabour & Jabour (2019) 59 Fam LR 475; [2019] FamCAFC 78

Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235

Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127

Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27

Kildea v Kildea (2007) 38 Fam LR 347; [2007] FamCA 1524

Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69; [1988] HCA 68

Manolis v Manolis (No 2) [2011] FamCAFC 105

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (2017) 372 ALR 440; [2017] VSCA 88

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Morgan v Bell [2011]…

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

AGLC: Sweet & Sweet [2022] FedCFamC2F 676
Case: [2022] FedCFamC2F 676
Decision Date

CaseChat Overview and Summary

This case involves parenting and property proceedings between Mr Sweet, the father, and Ms Sweet, the mother, concerning their two children, X (born in 2013) and Y (born in 2015). The father seeks equal shared parental responsibility and a weekabout shared care arrangement, while the mother originally sought equal shared parental responsibility and for the children to live with her and spend time with the father under supervision. The mother also raised concerns about the father's ongoing use of marijuana and his refusal to participate in court-ordered urinalysis testing. The court found that it was not in the best interests of the children to spend time with the father until he addresses his mental health and substance abuse challenges. The court has ordered that the mother have sole parental responsibility, the children live with her, and the children spend no time with the father until he meets specific requirements, such as attending mental health treatment and completing drug and alcohol counselling. The court has also made property orders, including an adjustment of 70 per cent in favour of the mother and 30 per cent in favour of the father, taking into account the consequences of family violence and the required future needs of the mother in caring for the children full time.

Orders