FAMILY LAW – Parenting and property applications – 25 year long marriage – where alleged incident involving the police occurred in December 2019 and Mother has not seen the children since – Father’s evidence was shambolic and not credible – evidence that children have clearly been informed about the litigation, despite Orders prohibiting this – reports of the Father’s inappropriate behaviour towards and around the children – concerning shortcomings in the Father’s parenting – allegations against the Mother not substantiated – Mother’s evidence was more measured and credible – parenting Orders made as proposed by the ICL and supported by the Mother for the youngest child to live with the Mother – but for the ages of the older children, the Court would likely Order them to change residence as well – substantial property pool containing marital home and joint bank account – marital home was owned by the second respondent Grandmother however has been in the Father’s name since 2015 due to a false statutory declaration – funds from joint bank account withdrawn right before proceedings commenced - Father and Grandmother claim the property is only in the Husband’s name fraudulently and not part of the property pool – finding that funds were removed for the purpose of ensuring they could not be reached by the Mother - the Grandmother and Father cannot benefit from their own wrong according to the maxim ex turpi causa non oritur action – finding the real property and funds are both assets or in the alternative financial resources for the purposes of the property pool –weight given to the Father for initial and ongoing financial contribution - Orders made for a 45/55 property division in the Husband’s favour - where potential breach of expert witness guidelines – where potential contempt and breach of s121 – Jones v Dunkel inferences.
[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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AGLC
Tyrell & Tyrell [2022] FedCFamC2F 1214
Case
[2022] FedCFamC2F 1214
Decision Date
CaseChat Overview and Summary
The matter before the Court involved a 25-year long marriage, which ended in December 2019. The parents had three children, two 16-year-old twins, and an 11-year-old. The children had not seen their mother since December 2019. The father alleged that the mother was violent towards the children and had an affair with another man. The mother alleged that the father sexually abused the children and had inappropriate behaviour towards them. The court was required to decide on the parenting arrangements and the division of the property. The court found that the father's evidence was not credible, and the mother's evidence was more credible. The court found that the mother's allegations of sexual abuse and inappropriate behaviour by the father were not substantiated. The court found that the father's conduct in relation to the property was fraudulent and misleading, and that the mother was entitled to a share of the property. The court ordered that the children should spend time with their mother, and that the property should be divided 45/55 in favour of the father. The court also made orders in relation to the children's contact with their mother and the disclosure of information between the parents.