Chosar & Chosar - [2023] FedCFamC2F 735

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chosar & Chosar [2023] FedCFamC2F 735

File number(s): PAC 5076 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 16 June 2023

Catchwords:
FAMILY LAW – PARENTING – Best interests of child – orders made.

FAMILY LAW – PROPERTY – Just and equitable property orders made.

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60DA, 60DAA, 65D, 75(2), 79(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.06

Mental Health Act 2007 (NSW) s 32

Cases cited:
Black & Kellner (1992) 15 Fam LR 343

In the Marriage of SW and WH Weir (1992) 16 Fam LR 154

Lotta & Lotta [2017] FamCA 50

Saif & Saif [2020] FamCA 119

Division: Division 2 Family Law

Number of paragraphs: 340

Date of hearing: 31 March 2023, 3–4 April 2023

Place: Parramatta

Counsel for the Applicant: Mr Havenstein

Solicitor for the Applicant: Byron & Associates

Counsel for the Respondent: Ms Mahony

Solicitor for the Respondent: Rowlandson & Co Solicitors

Counsel for the Independent Children's Lawyer: Mr Ladopoulos

Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers
ORDERS

PAC 5076 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CHOSAR

Applicant

AND:
MS CHOSAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

16 June 2023

THE COURT ORDERS THAT:
PARENTING
1.The mother have sole parental responsibility for the child X born in 2018 (“the child”).
2.The mother:
(a)notify the father of any proposed decision relating to the long term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
(b)take into consideration any views expressed by the father about the proposed decision; and
(c)notify the father of her final decision within seven days of having made the decision.

3.The child live with the mother.
4.The child spend time with the father as follows:
(a)From the date of these Orders and for a period of eight weeks thereafter, each alternate weekend from 10.00 am until 2.00 pm on Sunday, commencing on the second Sunday after these Orders;
(b)Thereafter and for a period of a further eight weeks, each alternate weekend from 10.00 am until 4.00 pm on Sunday;
(c)Thereafter and for a period of a further eight weeks, each alternate weekend from 10.00 am until 4.00 pm on Saturday and from 10.00 am until 4.00 pm on Sunday;
(d)Thereafter and until the commencement of Term 2 in 2024, each alternate weekend from 10.00 am on Saturday until 4.00 pm on Sunday;
(e)From the commencement of Term 2 of 2024 until the commencement of Term 1 in 2025, as follows:
(i)During school term, each alternate weekend from after school on Friday until 4.00 pm on Sunday, commencing on the first weekend of each school term, and;
(ii)During the school holiday periods at the end of Term 2 and Term 3…

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 Chosar & Chosar

Details

AGLC: Chosar & Chosar [2023] FedCFamC2F 735
Case: [2023] FedCFamC2F 735
Decision Date

CaseChat Overview and Summary

This case involved a final parenting and property hearing between Mr Chosar and Ms Chosar. The Court heard evidence from both parties and the Independent Children’s Lawyer, and considered the relevant legal principles and factors under the Family Law Act 1975 (Cth). The Court determined that the wife should have sole parental responsibility for the child, and ordered that the child live with the wife and spend time with the husband on a supervised and then unsupervised basis. The Court also found that it was just and equitable to make a property settlement order in favour of the wife, and ordered that the husband pay the wife a sum of money within eight weeks, failing which the Suburb F property should be sold and the proceeds used to make the payment. The Court’s orders aimed to achieve the best interests of the child and a just and equitable property settlement between the parties.

Orders