Azzarudin and Kulat - [2017] FamCA 1105

FAMILY COURT OF AUSTRALIA

AZZARUDIN & KULAT

[2017] FamCA 1105

FAMILY LAW – CHILDREN – Parenting Orders – Where the applicant mother seeks to vary previous final consent orders made in 2012 – Where the 2012 consent orders provided for the child to live with the mother in Australia until December 2017, upon which time the child would relocate to Country C to live with the father – Where the 2012 final consent order is varied – Where it is ordered that the child remain living in Australia and spend time with the father during holidays and when the father is in Australia – Where there is dispute between the parties as to which school the child should attend – Where an order is made for the child to attend D School.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637

Bennett & Bennett (1991) FLC 92-191
Doherty & Doherty [2016] FamCAFC 182

Goode & Goode (2006) FLC 93-286

Miller & Harrington (2008) FLC 93-383
Poisat & Poisat (2014) FLC 93-597
Rice v Asplund (1979) FLC 90-725

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SPS and PLS (2008) FLC 93-363

APPLICANT:

Ms Azzarudin

RESPONDENT:

Mr Kulat

FILE NUMBER:

BRC

1132

2012

DATE DELIVERED:

22 December 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

21 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Horsley

SOLICITOR FOR THE APPLICANT:

Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Firth

SOLICITOR FOR THE RESPONDENT:

Steven Watkinson

orders

That paragraphs 7, 8, 9, 10, 11 and 13 of the parenting order made on 1 May 2012 be discharged.
That B born on … 2006 (“the child”) live with the mother and spend time with the father at all such times as may be agreed between the parties and failing agreement as follows:
(a)       From 25 December 2017 until 22 January 2018 with the child to accompany the father to Country C on 25 December 2018 and return as an unaccompanied minor at the cost of the father;
(b)       For the Easter gazetted school holidays in each year in Country C with the child to travel as an unaccompanied minor at the cost of the mother;
(c)       For the June/July gazetted school holidays in each alternate year in Country C commencing in 2018 with the child to travel as an accompanied minor at the cost of the father;
(d)       For six weeks in or around September in each year inclusive of the gazetted September school holiday period, in Australia;
(e)       For four weeks during the gazetted summer school holiday period each year to occur in Country C with the child to fly as an unaccompanied minor or accompanied by the mother (with the child’s travel to be at the cost of the father);
(f)       From Friday after school to Monday before school whilst the father is present in Australia at other times upon the giving of one week’s notice to…

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 Azzarudin and Kulat

Details

AGLC: Azzarudin and Kulat [2017] FamCA 1105
Case: [2017] FamCA 1105
Decision Date: 22 December 2017

CaseChat Overview and Summary

In the matter of *Azzarudin and Kulat*, Carew J of the Federal Circuit Court of Australia considered an application to vary existing parenting orders concerning a child born in 2006. The dispute centred on the arrangements for the child's living arrangements, time spent with each parent, and international travel.

The court was required to determine the specific terms of new parenting orders, including the child's primary residence, the schedule for time spent with the father, arrangements for international travel to Country C and within Australia, communication between the child and parents, the child's secondary schooling, and the holding of the child's passports.

Carew J discharged specific paragraphs of the previous parenting order and made new orders detailing the child's residence with the mother and a comprehensive schedule for time spent with the father. This schedule included provisions for travel to Country C and within Australia during various school holidays and other periods, with specific arrangements for accompanied and unaccompanied travel and associated costs. The court also made orders regarding communication, secondary schooling at D School, and the holding of passports, with exceptions for travel. All extant applications were dismissed.

Orders

Orders of the court

That paragraphs 7, 8, 9, 10, 11 and 13 of the parenting order made on 1 May 2012 be discharged.

That B born on … 2006 (“the child”) live with the mother and spend time with the father at all such times as may be agreed between the parties and failing agreement as follows:

(a) From 25 December 2017 until 22 January 2018 with the child to accompany the father to Country C on 25 December 2018 and return as an unaccompanied minor at the cost of the father;

(b) For the Easter gazetted school holidays in each year in Country C with the child to travel as an unaccompanied minor at the cost of the mother;

(c) For the June/July gazetted school holidays in each alternate year in Country C commencing in 2018 with the child to travel as an accompanied minor at the cost of the father;

(d) For six weeks in or around September in each year inclusive of the gazetted September school holiday period, in Australia;

(e) For four weeks during the gazetted summer school holiday period each year to occur in Country C with the child to fly as an unaccompanied minor or accompanied by the mother (with the child’s travel to be at the cost of the father);

(f) From Friday after school to Monday before school whilst the father is present in Australia at other times upon the giving of one week’s notice to the mother.

That changeover in Australia occur at the child’s school if he is at school but otherwise at the mother’s residence.

That each of the mother and the father have telephone/Skype communication with the child at all such times that are suitable to the child’s routine and the child shall be at liberty to communicate with either parent at all such times as the child expresses a wish to do so and the parent with whom the child is then spending time shall facilitate that communication and afford the child privacy during that communication.

That, subject to any contrary agreement between the parties, the child attend D School for his secondary schooling and for this purpose the parties do all acts and things and sign all documents necessary to ensure the child can commence at that school in 2018.

That the child’s passports be held by the mother, save for occasions when he is travelling to and from Country C or to other places with the father as may be agreed from time to time.

That all extant applications be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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