Federal Circuit and Family Court of Australia
(DIVISION 2)
Kozma & Bielen (No 2) [2022] FedCFamC2F 1250
File number(s): BRC 10040 of 2020 Judgment of: JUDGE L. TURNER Date of judgment: 15 September 2022 Catchwords: FAMILY LAW – Parenting – stay application – where mother seeks stay application of orders whereby children aged 6 and 4 not spend time with or communicate with mother – held stay application dismissed Legislation: Family Law Act 1975 (Cth), ss. 60CC, 61DA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 13.03, 13.12
Cases cited: Brennan and Shaw (Stay Appeal) [2008] FamCAFC 138
Carlin and Carlin (1977) FLC 90-3210
Clemett and Clemett (1981) FLKC 91-013
House v The King (1936) 55 CLR 499
Maloney & Maloney [2011] FMCAfam 197
Pedrana & Cox(No. 2) [2012] FamCA 756
Trahn and Long (No 2) [2008] FamCAFC 194
Division: Division 2 Family Law Number of paragraphs: 64 Date of last submission/s: 12 September 2022 Date of hearing: 12 September 2022 Place: Lismore Solicitor for the Applicant: Mr O’Reilly of O’Reilly & Sochacki Lawyers Solicitor for the Respondent: Ms Bell of KLM Solicitors Counsel for the Independent Children’s Lawyer: Mr Priestley Solicitor for the Independent Children’s Lawyer: McVittie Legal ORDERS
BRC 10040 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BIELEN
Applicant
AND: MR KOZMA
Respondent
order made by:
JUDGE L. TURNER
DATE OF ORDER:
15 September 2022
THE COURT ORDERS THAT:
1.The application in a proceeding, including the stay application in respect to the final parenting orders made on 1 August 2022, filed by the mother on 2 September 2022 is hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kozma & Bielen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE L. TURNER:
introduction
After a five day final hearing concluding on 2 June 2022, final parenting orders were made on 1 August 2022 whereby the children X (aged 6) and Y (aged 4) live with the father, the father have sole parental responsibility for the children and unless otherwise agreed to in writing between the parties the children spend no time with and/or communicate with the mother.
On 25 August 2022 the mother filed a Notice of…
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- AGLC
- Bielen & Kozma (No 2) [2022] FedCFamC2F 1250
- Case
- [2022] FedCFamC2F 1250
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court needed to determine was whether the stay application should be granted. The court had to consider the best interests of the children, which was the paramount consideration under section 60CC of the Family Law Act 1975 (Cth). The court also needed to assess the evidence presented regarding the children's relationship with their mother and the impact of the proposed stay on their welfare. Furthermore, the court needed to consider the implications of any delay in implementing the final parenting orders.
Judge L. Turner dismissed the stay application, finding that the children's best interests would not be served by altering the final parenting orders. The judge concluded that the children had a stable and supportive relationship with the father and that there was no compelling evidence to suggest that a stay would be in their best interests. The judge also noted that any delay in implementing the final parenting orders could potentially cause confusion and instability for the children. As a result, the court dismissed the stay application and upheld the final parenting orders.
The court made an order dismissing the application, including the stay application in respect of the final parenting orders made on 1 August 2022, filed by the mother on 2 September 2022. The form of the order is subject to the entry in the Court’s records. This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.
Orders
Orders of the court
BRC 10040 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BIELEN
Applicant
AND:
MR KOZMA
Respondent
order made by:
JUDGE L. TURNER
DATE OF ORDER:
15 September 2022
THE COURT ORDERS THAT:
1. The application in a proceeding, including the stay application in respect to the final parenting orders made on 1 August 2022, filed by the mother on 2 September 2022 is hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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