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Family law judgments

Every Issue

Cite as: December 2013 87 (12) LIJ, p.66

Children

Parenting order varied where child’s newly “difficult situation” created by applicant’s breach of order

In Prewett & Mann [2013] FamCAFC 130 (27 August 2013) Fowler J granted the mother’s application to vary a final parenting order, holding that the rule in Rice & Asplund (1979) FLC 90-723 (requiring a significant change in circumstances) had been satisfied. The father appealed to the Full Court (Ainslie-Wallace, Ryan & Le Poer Trench JJ). The mother had initially complied with the order which allowed her to live with the child in M, south of Sydney, until January 2010 after which she was required to live in Sydney. The mother did rent property in Sydney but for financial reasons returned to live in M. In dismissing the appeal, the Full Court said at [57]:

“ . . . it was submitted by . . . the father that a party cannot disobey parenting orders and, because of the consequences of . . . her disobedience, have a court entertain an application to change those orders. We do not accept that there is a principle of general application in parenting cases to that effect. It is well settled that the court’s task . . . is to take steps with the child’s best interests as the paramount consideration. It follows that when evidence is presented which demonstrates that, for whatever reason, a child is in a difficult situation which [either parent] seeks to address, even if that parent, in disobedience of orders, created the circumstance under which the child suffers, the child needs the problem to be solved”.

Children

Bullied child allowed to change schools – schools’ policies as to bullying considered under s60CC(3)(m)

In Bardot & Benjamin [2013] FCCA 1024 (28 August 2013) Chief Judge Pascoe granted the mother’s application to move the parties’ eldest child (in Year 6) from the school she had attended since kindergarten so as to avoid alleged bullying at that school. The parties put each school’s anti-bullying policies before the Court. The Court at [81]-[84] compared the schools’ respective policies as to bullying under s60CC(3)(m) (“any other relevant fact or circumstance”), finding that a change of schools would be in the child’s best interests.

Children

Long-standing equal time varied at final hearing – Recommendation of family consultant not followed – Sole parental responsibility – Disrespectful father

In Thackeray & Rand [2013] FCCA 875 (20 August 2013) the parties had implemented a “week about” routine since November 2011. Equal time was sought by each party and supported by the family consultant. Judge Coker at [86] found the father to be “entirely focused on his own wishes”, and that he had “no respect for the mother” nor “her position in the life of the child and had no intent whatsoever of recognising the hurt that would be caused to this young child if that relationship were not fostered and developed” (at [88]). It was held at [105] “that the only child-focused and appropriate arrangement is one that reflects the mother having sole parental responsibility”. As to the long-standing arrangement of equal time, Judge Coker said at [107]:

“I am not of the view that equal time would be appropriate. Clearly, the expert evidence recommended contrary to that and the evidence . . . from the parties would also clearly show that equal time between each of the . . . households has not been in the best interests of this little boy”.

It was ordered that the child live with the mother and spend time with the father from Friday to Tuesday on alternate weekends.

Procedure

Court refuses to grant consent parenting order – Mother in contravention of earlier order

In Thomas & Hogan [2013] FCCA 1108 (1 August 2013) upon the mother’s failure to appear, a final parenting order was made that the child live with the father and the mother have supervised time. The mother promptly went “into hiding” with the child (at [4]). Further proceedings led to orders being sought by consent that all previous orders be discharged, that the child live with the mother and that the father have no time with the child except as agreed. In refusing to make that order Judge Jarrett at [24]-[27] examined the nature of a court’s role where parenting orders are sought by consent and said at [30]-[32] that the court’s “discretion ought to be exercised against determining” the application for consent orders as “[the mother’s] contravention is long-standing, wilful and there is . . . no attempt by her to place any evidence before the Court as to [the child’s] current circumstances or welfare”.

Property

Wife wins $6 million after separation – two pools – no contribution by husband

In Eufrosin & Eufrosin [2013] FamCA 311 (3 May 2013) parties to a long marriage had net assets of $2 million until six months after separation when the wife won $6 million. The wife regularly gambled with her sister who let the wife use her gaming card and gave her $20-50 towards her weekly ticket. They agreed that the sister should receive $1 million. The wife sought a two pool approach, arguing that the husband had made no contribution to her windfall; also arguing that Farmer & Bramley (2000) 27 FamLR 316 was distinguishable, inter alia, as there were no other assets in that case. The husband sought a one pool approach as the wife had used funds paid to her through the family company. He also sought the addback of the $1 million “gifted” to the wife’s sister. Stevenson J adopted a two pool approach and did not add back the $1 million, saying at [89]-[90] that “[t]he winning . . . ticket was purchased in [the sister’s] name, possibly with money provided . . . by her, and the prize money was deposited into [the sister’s] account . . . $5 million [then being transferred] into an account of the wife . . . [who had agreed] to share any winnings”. Stevenson J found at [106]-[109] that it was “impossible to identify the precise source of the funds used by the wife to purchase the winning ticket”, finding that “the husband made no contribution to the money which the wife applied to purchase [it]”. The husband received a s75(2) adjustment of $500,000 from the windfall pool due to his age (62) and future needs.



ROBERT GLADE-WRIGHT, a former barrister and accredited family law specialist, is the founder of The Family Law Book, a looseleaf and online service: see www.thefamilylawbook.com.au. He is assisted by family lawyer Craig Nicol. References to sections of an Act in the text refer to the Family Law Act 1975 (Cth) unless otherwise specified. The full text of these judgments can be found at www.austlii.edu.au. The numbers in square brackets in the text refer to the paragraph numbers in the judgment.

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