Binjori & Darmadi - [2022] FedCFamC2F 1503

Federal Circuit and Family Court of Australia
(DIVISION 2)
Binjori & Darmadi [2022] FedCFamC2F 1503

File number(s): PAC 3257 of 2019

Judgment of: JUDGE MYERS

Date of judgment: 10 October 2022

Catchwords: FAMILY LAW – Family Law Act 1975 - parenting

Legislation: Family Law Act 1975 (Cth), ss 60CC, 60CC(2), 60CC(2A), 60CC(2)(a)-(b), 60CC(3)(a)-(m), 60DAA, 65DAA sub-paras (3), (5)

Division: Division 2 Family Law

Number of paragraphs: 55

Date of last submission/s: 20 July 2022

Date of hearing: 8-9 February 2022, 18 March 2022

Place: Parramatta

Counsel for the Applicant: Ms Kaiti

Solicitor for the Applicant: Jacqui Griffin Mobile Solicitor

Counsel for the Respondent: Mr Alexander

Solicitor for the Respondent: Legal Aid NSW Parramatta Family Law

Counsel for the Independent Children's Lawyer: Ms Balendra

Solicitor for the Independent Children's Lawyer: Laura K Law
ORDERS

PAC 3257 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BINJORI

Applicant

AND:
MS DARMADI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MYERS

DATE OF ORDER:

10 OCTOBER 2022

THE COURT ORDERS THAT:
1.That all previous orders be discharged.
2.That X born in 2013 and Y born in 2014 (“The Children”) live with the Mother.
3.That the mother have sole parental responsibility for the said children.
4.That the father enrol in and complete a 20-week Men’s Behavioural Change course designed to assist men who are perpetrators of family violence.
5.That the Independent Children’s Lawyer forthwith recommend to the father the name of a psychologist who is able to provide to the Father anger management counselling under a 12-week mental health plan.
6.That the father obtain a 12-week mental health plan referral from his general practitioner for anger management counselling with the psychologist recommended by the Independent Children’s Lawyer pursuant to order 5 above.
7.That upon the father having completed 10 weeks of the Men’s Behavioural Change course referred to in order 4 above, and six weeks of the 12-week mental health plan referral for anger management counselling referred to in order 6 above, then the children shall commence spending supervised time with the father for two hours per week.
8.For the purposes of determining who will conduct supervision pursuant to order 7 above, supervised time shall be conducted by a professional supervision service that writes reports about how each supervised session progressed. The father shall nominate the professional supervision service and shall be wholly responsible for the costs of the professional supervision service. The father shall spend time with the children on such days and such times as they are made available by the professional supervision service. For the purposes of facilitating this order, the parents are to complete any intake assessment, and comply with all directions given by the professional supervision service.
9.Where the father is unable or unwilling to pay the costs of a professional supervision service, then the father shall spend time with the children at his sole expense supervised by the Region B Children’s Contact Service, on such days and such times as are made available by…

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 Binjori & Darmadi

Details

AGLC: Binjori & Darmadi [2022] FedCFamC2F 1503
Case: [2022] FedCFamC2F 1503
Decision Date

CaseChat Overview and Summary

In the case of Binjori & Darmadi, the Federal Circuit and Family Court of Australia (Division 2) was tasked with determining the final parenting arrangements for the two children, X born in 2013 and Y born in 2014. The father, Mr Binjori, filed an Initiating Application seeking shared parental responsibility and specific visitation arrangements. The mother, Ms Darmadi, filed a Response seeking sole parental responsibility and no contact with the father. The Independent Children's Lawyer (ICL) also filed a Minute of Order recommending sole parental responsibility for the mother and no contact with the father.

The primary legal issue before the court was determining the best parenting arrangements for the children, taking into account the allegations of family violence, the parents' capacity to communicate and cooperate, and the children's best interests. The court had to consider whether supervised or unsupervised contact with the father was appropriate, and if so, under what conditions.

In delivering the judgment, Judge Myers found that the father had perpetrated family violence against the mother during their relationship. However, the court found the mother to be an unreliable witness due to her inconsistent evidence and problematic manner during cross-examination. The court was concerned about the negative narrative the mother had provided to the children about their father. The family report prepared by Dr E suggested a pathway forward where the father engaged in anger management counselling and a Men's Behavioural Change course, followed by a period of supervised contact with the children.

The court accepted Dr E's recommendations and made orders that the father complete the proposed courses and undertake supervised time with the children before any unsupervised contact could occur. The court also made orders prohibiting physical discipline, removing the children from the airport watchlist, and preventing the parents from discussing the proceedings or speaking negatively about each other to the children. The court found it appropriate for the father to bear the financial burden of the supervision and contact arrangements.

In summary, the court ordered that the children live with the mother, who was granted sole parental responsibility. Supervised contact with the father was ordered, conditional upon him completing the proposed courses and achieving certain thresholds. Unsupervised contact could then occur, subject to further conditions being met. The orders were designed to protect the children from family violence while also allowing them to maintain a relationship with their father.

Orders