TENNENT & TENNENT - [2018] FamCA 708

FAMILY COURT OF AUSTRALIA

TENNENT & TENNENT

[2018] FamCA 708

FAMILY LAW – CHILDREN – Interim Parenting – Where the mother raises concerns about the father’s parenting capacity and inappropriate behaviour with the child – Where the father raises concerns about the mother’s mental health and enmeshment with the child – Where the child seeks to spend more time with the father – Where the parents live a significant distance apart – Where the Family Consultant and the Independent Children’s Lawyer are supportive of the child spending more time with the father – Where supervised contact reports indicate no issues of risk or parenting capacity in the father’s time with the child – Where the parents appear to have polarised views of parenting – Where the evidence at this stage supports the contention that the mother is somewhat controlling and inflexible – Where it is appropriate for the child to spend gradually increasing time with the father – Where the father’s time with the child does not need to be supervised – Orders made substantially as proposed by the Independent Children’s Lawyer.

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

Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FamCAFC 104
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
Marvel v Marvel (No. 2)[2010] FamCAFC 101
Mazorski v Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
Smith & Smith [2017] FamCAFC 226
SS & AH[2010] FamCAFC 13

APPLICANT:

Mr Tennent

RESPONDENT:

Ms Tennent

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

FILE NUMBER:

PAC

1311

2018

DATE DELIVERED:

12 September 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

13 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Longworth

SOLICITOR FOR THE RESPONDENT:

Fox & Staniland Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ryan of Legal Aid NSW Parramatta Family Law

Orders Pending Further Order:

That the mother, Ms Tennent, and father, Mr Tennent, have equal shared parental responsibility for the child, X born … 2012.
That the child live with the mother.
That the child spend time with and communicate with the father as agreed between the parties in writing, such writing may include SMS or email communication, and in default of agreement as follows:
(a)by telephone as agreed between the parties but failing agreement each Tuesday and Thursday that the child is not otherwise in the father’s care with the father to telephone the child on the mother’s mobile number between 4.30 pm and 5.30 pm provided always that the mother shall ensure that the child is available to take the father’s call and that the child is afforded reasonable privacy when talking to the father;
(b)on two consecutive days from 9.00 am until 3.00 pm on the first weekend after the date of these…

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: TENNENT & TENNENT [2018] FamCA 708
Case: [2018] FamCA 708
Decision Date: 12 September 2018

CaseChat Overview and Summary

The parties to this proceeding were Tennent & Tennent, the applicants, and the respondent, whose identity is not specified in the provided text. The dispute concerned an application for an order under section 102 of the *Family Law Act 1975* (Cth) to set aside a financial agreement. The matter came before Foster J in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the financial agreement in question met the requirements of section 90K of the *Family Law Act 1975* (Cth) for it to be binding. Specifically, the court was required to determine if the agreement had been entered into by the parties in accordance with the provisions of section 90C of the Act, which outlines the conditions for the formation of a valid financial agreement.

Foster J's reasoning focused on the statutory requirements for a financial agreement to be binding. The court considered the provisions of section 90C, which mandates that a financial agreement must be in writing, signed by both parties, and that each party must have received independent legal advice before signing. The court's analysis would have involved scrutinising the evidence presented to ascertain whether these preconditions had been satisfied. If any of these requirements were found to be wanting, the agreement would not be binding under section 90K.

The provided text does not contain information regarding the final orders or outcome of the application.

Orders