Behn & Ziomek - [2014] FamCA 157

FAMILY COURT OF AUSTRALIA

BEHN & ZIOMEK

[2014] FamCA 157

FAMILY LAW – CHILDREN – Interim applications – father seeks that the child lives with him – mother seeks that the child spends supervised time with the father – child 20 months old – child has not spent time with the father for eight months – child to live with the mother and spend time with the father three times per week – an initial period of limited time to re-establish relationship – no unacceptable risk of harm in the father’s care to warrant supervision – mother recently returned to Australia with the child following eight months in Germany – father had invoked the Hague convention – father’s application for an agreement made in Germany to be registered in Australia refused
FAMILY LAW – PROPERTY – Interim application by the mother for spousal maintenance and the return of personal property adjourned – father to file a response regarding those issues
FAMILY LAW – INJUNCTIONS – mother restrained from removing the child from Australia
FAMILY LAW – PRACTICE & PROCEDURE – Transfer of proceedings – mother’s application granted

Family Law Act 1975 (Cth) s 60CC
Hague Convention on the Civil Aspects of International Child Abduction, signed 25 October 1980, [1983] UNTS 1343

APPLICANT:

Mr Behn

RESPONDENT:

Ms Ziomek

FILE NUMBER:

NCC

2014

DATE DELIVERED:

25 February 2014
EX TEMPORE

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

24 February 2014

REPRESENTATION

APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

Armstrong Legal

Orders pending further order:

That the proceedings be transferred to the Sydney Registry of the Family Court of Australia and the matter listed before Registrar Bastiani at 10.00 am on

14 April 2014.
That the child L born … 2012 shall live with the mother.
That the child shall spend time with the father on three occasions per week, failing agreement otherwise being Tuesday, Thursday and Saturday as follows:
(a)over a period of two weeks commencing 1 March 2014 for a period of two hours from 10.00 am to 12.00 noon;
(b)thereafter commencing 15 March 2014, from 10.00 am to 5.00 pm.
The changeover point shall be at the B Contact Centre, Suburb C, Sydney, unless otherwise agreed.
Each party shall forthwith do all acts and things necessary to complete the intake documents for access to changeover services at B Contact Centre and once accepted changeover shall be in the Centre NOTING that until such time as the Centre accepts the parties as users of the Centre, changeover shall be outside the entrance to the Centre or as otherwise agreed.
That the father shall communicate with the child by SKYPE as agreed but failing agreement on Monday, Wednesday and Friday at 6.00 pm (AEST) for a period of up to 10 minutes on each occasion.
(a)The mother shall facilitate such SKYPE communication by ensuring the child is present and encouraging him to participate; AND
(b)the mother is restrained during the course of SKYPE conversations between…

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 Behn & Ziomek

Details

AGLC: Behn & Ziomek [2014] FamCA 157
Case: [2014] FamCA 157
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered applications by Mr Behn (the father) and Ms Ziomek (the mother) concerning their 20-month-old child, L. The father sought interim residence of the child and the registration of a German agreement, while the mother sought supervised time between the child and the father. The proceedings also involved the mother's applications for spousal maintenance and the return of personal property, and the mother's request to transfer the proceedings to Sydney.

The court was required to determine the interim parenting arrangements for the child, specifically whether the child should live with the father or spend supervised time with him, and to address the mother's applications for spousal maintenance and the return of personal property. Additionally, the court had to decide whether to transfer the proceedings to the Sydney Registry and whether to grant an injunction restraining the mother from removing the child from Australia.

Justice Cleary, applying the principles of the *Family Law Act 1975* (Cth), particularly section 60CC, prioritised the benefit of a meaningful relationship with both parents and the need to protect the child from harm. The court noted the child had not spent time with the father for approximately eight months, following the mother's return to Australia from Germany. Despite the father having invoked the Hague Convention, his application to register a German agreement was refused. The court found no unacceptable risk of harm to the child in the father's care and therefore declined the mother's request for supervised time. The court ordered that the child live with the mother and spend time with the father three times per week, commencing with limited two-hour periods for two weeks to re-establish their relationship, followed by longer periods. The proceedings were transferred to the Sydney Registry, and the mother was restrained from removing the child from Australia. Directions were also made for the father to respond to the mother's claims for spousal maintenance and the return of personal property.

Orders