TURNER & TURNER

This case concerned disputes between a mother and father regarding their three children and their property. The mother was alleged to be emotionally abusing the children by obstructing their relationship with the father. The court was required to determine issues relating to the children's residence and the feasibility of a change of residence, as well as property matters including the add-back of a lump sum payment received by the father from a workplace injury and the first option to retain the family home.

The legal issues before the court included whether a change of residence for the children was appropriate and feasible, given the mother's alleged emotional abuse and obstruction of the children's relationship with their father. The court also had to determine how to address the property dispute, specifically whether a significant sum received by the father from a workplace injury, which had been spent, should be added back to the asset pool for division. Furthermore, the court needed to decide which party should have the first option to retain the family home.

The court considered the primary considerations under s.60CC(2) of the Family Law Act, namely the benefit to the children of a meaningful relationship with both parents and the need to protect them from harm. The court found that most children benefit from a relationship with both parents, as recognised in s.60B of the Act. It was noted that the mother had actively prevented the children from spending time with the father and had made major decisions about them unilaterally. While the father had not always paid the full amount of child support, this was not necessarily seen as reflecting a poor attitude towards his parental responsibilities. The court also considered the presumption of equal shared parental responsibility under s.61DA, which applies absent findings of abuse or family violence. The court found that the mother's actions constituted emotional abuse by orchestrating the children's rejection of their father, but this was not encompassed within the statutory definition of abuse.

The court made orders granting the mother sole parental responsibility for the children, with specific injunctions restraining her from changing their names or relocating them from their current residence without the father's consent or a court order. The mother was also restrained from taking the children to further counselling with a specific individual or organisation. The children were ordered to live with the mother, and spend time with the father as agreed. The mother was ordered to keep the father informed of the children's schooling and medical information, and was restrained from inhibiting the provision of this information to the father. In relation to property, the father was ordered to pay the mother a sum of $135,296.00 and refinance the mortgage on the family home into his sole name. If the father failed to comply, the mother had the option to pay the father a sum of $149,704.00 and refinance the mortgage into her sole name. If neither party complied, the property was to be listed for sale with proceeds distributed according to a specified formula, with a significant portion of the net proceeds allocated to the mother. The father was granted exclusive occupation of the property pending its transfer or sale.