Avaras & Bria - [2022] FedCFamC2F 362

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Avaras & Bria [2022] FedCFamC2F 362

File number(s): ADC 568 of 2022

Judgment of: JUDGE DICKSON

Date of judgment: 22 March 2022

Catchwords: FAMILY LAW – Parenting – unilateral relocation by mother with two children from South Australia to Western Australia – where father seeks for children’s return to the metropolitan area of Adelaide – where mother seeks to remain in Western Australia with the children – where the children have special needs – where there are mutual allegations of family violence - assessment of the parties’ competing positions – nature of an interim hearing – where it is in the best interests of the children to return to Adelaide pending Trial

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 69ZL

Cases cited:
C & S [1998] FamCA 66

Goode & Goode (2006) FLC 93-286

Salisbury & Hutchins [2009] FMCAfam 978

U v U (2002) FLC 93-112

Division: Division 2 Family Law

Number of paragraphs: 73

Date of hearing: 22 March 2022

Place: Adelaide

Counsel for the Applicant: Ms Fuda

Solicitor for the Applicant: Belperio Clark

Solicitor for the Respondent: Ms Dass for KDK Family Law
ORDERS

ADC 568 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR AVARAS

Applicant

AND:
MS BRIA

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

22 MARCH 2022

UPON NOTING THAT the proceedings were conducted by Microsoft Teams
THE COURT ORDERS DURING THE PERIOD OF THE ADJOURNMENT THAT:
1.No later than 5:00pm on 29 March 2021 the mother do return the children X born in 2016 and Y born in 2019 (‘the children’) to reside within the metropolitan area of Adelaide, South Australia.
2.In the event that the mother fails to comply with the order contained in paragraph 1, pursuant to Section 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the children X born in 2016 and Y born in 2019; and
(b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found; and
(c)to deliver the children to the father MR AVARAS born in 1984 at such a place as the father and the person effecting such recovery agree to be appropriate.

3.Liberty to the father to approach the Chambers of Judge Dickson in the event that the mother fails to comply with paragraph 1 herein.
4.In order to facilitate the return of the children to Adelaide in accordance with paragraph 1 herein:
(a)The mother shall be responsible for booking the flights on economy airfare only for herself and the…

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.

Continue reading Avaras & Bria

Details

AGLC: Avaras & Bria [2022] FedCFamC2F 362
Case: [2022] FedCFamC2F 362
Decision Date

CaseChat Overview and Summary

This case concerns an application by the father, Mr Avaras, for interim parenting orders in relation to two children born to him and the mother, Ms Bria, during their relationship. The parents separated on 6 February 2022 and on 17 February 2022, the father filed an Initiating Application seeking orders, inter alia, that the mother return the children to Adelaide, South Australia and that the children live primarily with the father. The mother responded on 15 March 2022 and sought orders that the children live with her and that she remain in Western Australia. The mother also proposed that the father spend time with the children on a supervised basis, although no detail was provided as to how such an arrangement would be implemented. At the hearing, the father proposed that the mother and children reside in the former matrimonial home for a period of three months following their return to South Australia. The mother opposed this proposal and sought orders that she and the children reside in the former matrimonial home indefinitely.The Court held that the primary consideration in determining the best interests of the children was to ensure that they have a meaningful relationship with each of their parents. The Court considered the desirability of the children’s parents being as closely involved as possible in their children’s lives and that the parents should spend time with their children commensurate with the need to protect the children from physical and psychological harm or from being subjected to abuse, neglect or family violence. In this case, the Court was not satisfied that it would be in the children’s best interests for an order to be made for equal shared parental responsibility, given the allegations made mutually of family violence and the uncertainty with respect to how the parents will be able to manage the co-parenting of these children. The Court further considered the need to ensure that the children are protected from harm both physical and psychological which may arise if they are exposed to any kind of abuse, neglect or family violence. The Court was satisfied that the children were not likely to be subjected personally to physical or psychological harm arising from abuse, neglect, and family violence.The Court held that the need to ensure that the children have a meaningful relationship with each of their parents takes on a particular importance at this interim stage, given that if the mother’s application was acceded to, the parties will be residing hundreds of kilometres from each other and the children remain very young at five and three years of age respectively. The Court held that it was appropriate for the children to return to reside in the metropolitan area of Adelaide, and that the mother’s unilateral relocation with the children to Western Australia should not be condoned at this interim stage. The Court ordered that the children be returned to the metropolitan area of Adelaide no later than 29 March 2022 and that the mother book the flights on an economy airfare with such flights to be paid for by the father. The Court further ordered that the children live with the mother unless otherwise provided for, and that the children spend time with the father in accordance with the proposed interim arrangements. The Court also made a series of mutual injunctive orders restraining the parties from engaging in the sort of behaviour of which they complained about in their material and further directing, in effect, for the children to attend back at the D School.

Orders