TRASK& SCRIVEN - [2019] FCCA 3079

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRASK& SCRIVEN

[2019] FCCA 3079

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made-property proceedings-orders made-undefended hearing.

Legislation:

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

65D,4AB(1), 79(4), 79(2), 75(2), 79(1), 75(2).

Cases cited:

Keating & Keating [2019] FamCAFC 46

Lotta & Lotta [2017] FamCA 50

Russell & Russell [1999] FamCA 1875

Teal & Teal [2010] FamCAFC 120

Weir & Weir [1992] FamCA 69

Applicant:

MS TRASK

Respondent:

MR SCRIVEN

File Number:

PAC 2724 of 2018

Judgment of:

Judge Newbrun

Hearing date:

11 September 2019

Date of Last Submission:

11 September 2019

Delivered at:

Parramatta

Delivered on:

8 November 2019

REPRESENTATION

Counsel for the Applicant:

Ms Haughton of Counsel

No appearance by or on behalf of the Respondent

ORDERS

Parenting

The Applicant Mother have sole parental responsibility for the children, [X] (“[X]”) born … 2006 and [Y] (“[Y]”) born … 2008 (“the children”).
That the children live with the Applicant Mother.
That the children spend supervised time with the Respondent Father at the Town A Catholic Care Contact Centre (“the Organisation”) each alternate weekend on Sunday from 10:00am to 12:00pm until such time as the Respondent Father provides to the Applicant Mother or her legal representative four (4) consecutive negative drug screening tests.
To facilitate the Respondent Father’s time with the children in Order 3, each party shall:

4.1.Within seven (7) days from the date of these Orders contact the organisation and arrange and attend for the first available and offered intake appointment with the organisation to enable an assessment to be made as to the suitability for attendance at the organisation and inclusion with the organisation program;
4.2.Expeditiously provide all information or documents requested of them, complete all forms and do all things, sign all documents and give all consents, instructions and authorities as may be necessary to enable the completion of all intake and assessment process by the organisation;
4.3.Present the children to the agreed location at such time and dates as are advised;
4.4.Follow all rules of the organisation;
4.5.If the organisation following its intake procedure is unable or unwilling to provide supervision as set out above, then either party have liberty to restore the matter to the Court list on seven days written notice to the other parties and to the Court;
4.6.That the Respondent Father be solely liable for the costs of the supervision.

That upon the Respondent Father providing to the Applicant Mother or her legal representative with four (4) consecutive negative drug screening tests, the children shall spend time with the Respondent Father as agreed between the parties or failing agreement as follows:

5.1.That upon the receipt of the fourth negative drug screening test and for a period of no less than six (6) months, each alternate Sunday from 9:00am to 5:00pm;
5.2.That following the Respondent Father’s consistent and continuous time with the children and upon the completion of Order 5.1, the Respondent Father shall spend time with the children each alternate…

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: TRASK& SCRIVEN [2019] FCCA 3079
Case: [2019] FCCA 3079
Decision Date: 8 November 2019

CaseChat Overview and Summary

This matter concerned parenting and property proceedings before Judge Newbrun. The applicant mother sought orders regarding the children, [X] and [Y], and the division of property. The proceedings were heard as an undefended hearing.

The court was required to determine the parenting arrangements for the children, specifically addressing issues of parental responsibility, living arrangements, and the nature and extent of the respondent father's time with the children. Additionally, the court needed to make orders for the sale of a property located at B Street, Town C, and the distribution of the sale proceeds.

In relation to parenting, the court made orders for the applicant mother to have sole parental responsibility and for the children to live with her. The respondent father was granted supervised time with the children, contingent on providing four consecutive negative drug screening tests. The orders also detailed a staged progression of unsupervised time with the children, subject to ongoing drug testing and adherence to specific conditions, including restrictions on driving the children and prohibitions on alcohol and illicit substance use. The court also made orders concerning special occasions, communication, changeovers, and the respondent father's participation in an anger management course. The court also permitted the applicant mother to travel with the children out of the Commonwealth of Australia.

Regarding property, the court ordered the sale of the Town C property by auction, with detailed provisions for listing, reserve price, and the distribution of proceeds. After payment of sale costs, encumbrances, and rates, a sum of $48,000 was to be paid to the paternal grandfather, followed by 75% of the remaining proceeds plus $69,209 to the applicant mother, with the balance to the respondent father. Each party was to retain personal property in their possession, and they were to indemnify each other against liabilities and release each other from debts, except as otherwise provided. The court also included provisions for the Registrar to execute documents if a party refused to do so and granted liberty to apply. A specific provision was made for the respondent father to apply to set aside the orders within 14 days of notification.

Orders

Orders of the court

Parenting

The Applicant Mother have sole parental responsibility for the children, [X] (“[X]”) born … 2006 and [Y] (“[Y]”) born … 2008 (“the children”).

That the children live with the Applicant Mother.

That the children spend supervised time with the Respondent Father at the Town A Catholic Care Contact Centre (“the Organisation”) each alternate weekend on Sunday from 10:00am to 12:00pm until such time as the Respondent Father provides to the Applicant Mother or her legal representative four (4) consecutive negative drug screening tests.

To facilitate the Respondent Father’s time with the children in Order 3, each party shall:

4.1. Within seven (7) days from the date of these Orders contact the organisation and arrange and attend for the first available and offered intake appointment with the organisation to enable an assessment to be made as to the suitability for attendance at the organisation and inclusion with the organisation program;

4.2. Expeditiously provide all information or documents requested of them, complete all forms and do all things, sign all documents and give all consents, instructions and authorities as may be necessary to enable the completion of all intake and assessment process by the organisation;

4.3. Present the children to the agreed location at such time and dates as are advised;

4.4. Follow all rules of the organisation;

4.5. If the organisation following its intake procedure is unable or unwilling to provide supervision as set out above, then either party have liberty to restore the matter to the Court list on seven days written notice to the other parties and to the Court;

4.6. That the Respondent Father be solely liable for the costs of the supervision.

That upon the Respondent Father providing to the Applicant Mother or her legal representative with four (4) consecutive negative drug screening tests, the children shall spend time with the Respondent Father as agreed between the parties or failing agreement as follows:

5.1. That upon the receipt of the fourth negative drug screening test and for a period of no less than six (6) months, each alternate Sunday from 9:00am to 5:00pm;

5.2. That following the Respondent Father’s consistent and continuous time with the children and upon the completion of Order 5.1, the Respondent Father shall spend time with the children each alternate Saturday from 9:00am to 5:00pm Sunday thereafter.

5.3. That should the Respondent Father fail to spend time with the children on more than three (3) occasions without notice, the Respondent Father’s time with the children shall revert back to Order 5.1.

That on special occasions, the children shall spend time with the parties as follows:

6.1. The Applicant Mother on Mother’s Day from 9:00am to 5:00pm Sunday;

6.2. The Respondent Father on Father’s Day from 9:00am to 5:00pm Sunday;

6.3. The Applicant Mother on her birthday on … from 9:00am to 5:00pm Sunday should the children not be in the Applicant Mother’s care;

6.4. The Respondent Father on his birthday on … from 9:00am to 5:00pm Sunday should the children not be spending time with the Respondent Father;

6.5. The Respondent Father from 4:00pm to 8:00pm on the children’s birthdays being … and … should their respective birthdays fall on NSW calendar school day;

6.6. The Respondent Father from 2:00pm Saturday to 5:00pm Sunday on the children’s birthdays being … and … should either child’s birthday fall on a Saturday;

6.7. The Respondent Father from 9:00am Saturday to 2:00pm Sunday on the children’s birthdays being … and … should the child’s birthday fall on a Sunday;

6.8. The Respondent Father in odd numbered years, from 2:00pm Christmas Day to 5:00pm Boxing Day;

6.9. The Respondent Father in even numbered years, from 5:00pm Christmas Eve to 2:00pm Christmas Day;

6.10. At any other times as may be available or agreed to between the parties in writing with no less than seven (7) days’ notice.

That during the Respondent Father’s time with the children, the Respondent Father shall refrain from driving the children on public roads.

That during the Respondent Father’s time with the children, the Respondent Father shall not allow the children to ride their motorbikes and operate motor vehicles on public roads.

That the Respondent Father is at liberty to contact the children directly via telephone at reasonable times.

10. That for the purposes of changeover, the Applicant Mother or her nominee shall drop off and collect the children at the paternal grandfather’s home at the commencement and conclusion of the Respondent Father’s time with the children and that for the purposes of changeover, the Respondent Father shall conduct himself in a civil manner.

11. That in the event that the children have a sporting event, the Applicant Mother or her nominee shall drop off and collect the children from these events.

12. That the Respondent Father shall not consume any illicit substances or alcohol twelve (12) hours prior to spending time with the children, in the presence of the children or whilst the children are in his respective care.

13. That the parties shall provide at least four (4) weeks’ notice of an event including the time, date, venue and attendees, the children shall be entitled to attend the following events which are organised to celebrate the children’s immediate family members’: birthdays, engagements and weddings and the other party is not to unreasonably deny such request.

14. That pursuant to section 65Y(2) of the Family Law Act 1975, the Applicant Mother be permitted to travel with the children out of the Commonwealth of Australia.

15. That the Respondent Father undergo random chain of custody urinalysis as follows:

15.1. At a frequency of no greater than once per month;

15.2. At times nominated by the Applicant Mother or her solicitor;

15.3. Within forty-eight (48) hours of receiving a request;

15.4. At the Respondent Father’s sole cost;

15.5. That the results of the urinalysis testing be provided to the Applicant Mother or her legal representative within twenty-four (24) hours of receipt;

15.6. In the event a test result is positive for illicit substances, the Respondent Father’s time with the children shall be suspended until such time when four (4) further clean test results have been provided, and the Applicant Mother or her legal representative may request those within the same month notwithstanding 15.1.

16. That both parties shall advise each other and keep each other advised of their current email address.

17. In the event of the children suffering a medical emergency requiring medical attention while spending time with the Respondent Father, the Respondent Father shall:

17.1. Notify the Applicant Mother as soon as possible; and

17.2. The Applicant Mother shall be provided with the full details of the practitioner and medical facility upon which the children attend as soon as possible.

18.

The Respondent Father shall ensure the Applicant Mother is kept informed of:

18.1 Any medical problems or illness suffered by the children while in his care;

18.2 Any medication that has been prescribed for the children; and

18.3 Any other matter relevant to the children’s welfare.

19.

That within 21 days from the date of these Orders the Respondent Father shall:

19.1 Enrol in an anger management course titled “Taking Responsibility” conducted by Relationships Australia or a similar course, and thereafter complete the course; and

19.2 Provide to the Applicant Mother or her legal representative written evidence of his completion of the course promptly upon completion.

20.

That the parties shall not denigrate the parties or a member of their extended family in the presence or hearing of the children and shall immediately remove them from the presence or hearing of any third party who does so.

Property

21.

That within twenty-one (21) days from the date of these Orders, the Applicant and the Respondent shall do all such acts and things and sign all documents necessary to sell the property situated and known as B Street, Town C in the State of New South Wales Certificate of Title Folio Identifier …17 (“the Town C property”) and for that purpose the following shall apply:

21.1 The Town C property shall be listed for auction with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders the real estate agent will be nominated by the President of the Real Estate Institute of New South Wales;

21.2 The Respondent shall execute all documents requested by the auctioneer for sale of the Town C property by auction;

21.3 The reserve price of the Town C property shall be such amount as agreed between the parties and failing agreement being reached between the parties 14 days prior to the auction, then the reserve price shall be nominated by the auctioneer;

21.4 The parties shall give such instructions as are necessary to a solicitor or conveyancer to prepare a contract for sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer;

21.5 The Respondent shall agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the Town C property at all times reasonably requested by the agent and auctioneer and ensuring that the Town C property is clean, neat and in good order at the time of any inspection and on the day of the auction;

21.6 That the parties attend the auction and negotiate with the highest bidder in the event of the reserve price not being reached;

21.7 The sale price of the Town C property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached, the sale price of the Town C property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property at a price that is at least 90% of the reserve price shall be accepted by the parties;

21.8 That upon agreement being reached for sale of the property the Respondent shall execute the contract of sale and all of the documents necessary to complete the sale of the Town C property including all transfer documentation forthwith upon its submission to them by the agent, solicitor or conveyancer.

22.

That in the event the property is not sold at the public auction as provided for in Order 23 above, the reserve price of the property shall be reduced by 5% at each subsequent auction until such time the property is sold.

23.

That upon completion of the sale, the proceeds of the sale shall be applied and disbursed in the following manner and priority

23.1 Payment of real estate commission/legal fees and other legal costs associated with the sale;

23.2 In discharge of all loans presently encumbering the property;

23.3 Payment of any fees due to the Real Estate Institute or Institute of Valuers for fees incurred because of the operation of these Orders;

23.4 In discharge of any outstanding council and water rates;

23.5 In payment of $48,000 to the paternal grandfather;

23.6 In payment of seventy-five percent (75%) of the proceeds of sale thereafter to the Applicant plus a payment of $69,209;

23.7 The balance thereafter to the Respondent.

24.

That as between the Applicant and the Respondent, and subject to the above Orders the Applicant and Respondent shall each respectively retain all interest in and entitlement to:

24.1 All personal property now in his/her respective possession or control;

24.2 All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;

24.3 All interests in any business, life insurance policies and superannuation funds standing in his/her sole name respectively.

25.

Except as any provision of the paragraphs comprising this Order provide to the contrary:

25.1 The Applicant hereby indemnifies the Respondent from and in respect of all actions, claims, suits and demands as may be made against the Applicant in relation to all liabilities in the name of the Applicant or in her name jointly with any other person.

25.2 The Respondent hereby indemnifies the Applicant from and in respect of all actions, claims, suits and demands as may be made against the Respondent in relation to all liabilities in the name of the Respondent or in his name jointly with any other person.

26.

Except as any provision of the paragraphs comprising this Order prove to the contrary, each of the Applicant and the Respondent release the other from all debts owing from one to the other.

27.

That each party shall do all things necessary including providing all consents to give effect to these Orders in the time periods prescribed in these Orders.

28.

That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

29.

Liberty to apply to the Court on 7 days’ notice in relation to any problem facilitating or implementing the above orders.

30.

Pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001, the Court notes that the Court or a Registrar may vary or set aside a judgment or Order after it has been entered if the judgment or Order was made in the absence of a party. Any application by the Respondent to set aside the above Orders shall be made within 14 days of being notified of the above Orders.

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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