DAMANI & DAMANI (No.3) - [2019] FCCA 1082

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAMANI & DAMANI (No.3)

[2019] FCCA 1082

Catchwords:
FAMILY LAW – Parenting – high conflict – separation of siblings – parental responsibility – injunction against the mother’s partner restraining him from coming into contact with the children – father seeks that injunction be made as a final order.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65DAA(1), 65DAA(2), 65DAA(3), 68B(1)

Cases cited:

Damani & Damani [2018] FCCA 3351
Damani & Damani (No.2) [2018] FCCA 3367
Waterford & Waterford [2013] FamCA 33
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] HCA 4

Applicant:

MR DAMANI

Respondent:

MS DAMANI

File Number:

MLC 5027 of 2015

Judgment of:

Judge Harland

Hearing dates:

12, 13 and 14 December 2018; 18 January 2019

Date of Last Submission:

15 March 2019

Delivered at:

Melbourne

Delivered on:

24 April 2019

REPRESENTATION

Counsel for the Applicant:

Ms Dellidis

Solicitors for the Applicant:

Moores Legal

Counsel for the Respondent:

Mr Grant

Solicitors for the Respondent:

Waters Lawyers

ORDERS

That the parties have equal shared parental responsibility for [X] born … 2008 and [Y] born … 2012.
That [X] born … 2008 live with the father.
That [X] spend time with the mother during school terms:
(a)on Mondays and Tuesdays from 3:30pm to 8:00pm;
(b)on alternate Sundays from 12:00pm to 6:00pm when [Y] is in her care;
(c)At other times as agreed.
That [Y] live with the father at the following times during school terms:
(a)In week one from 8.30am Wednesday to 8.30am Monday but where Monday is a public holiday time will conclude at 4.00pm Monday or where the weekend falls on the Melbourne Cup weekend until 4.30pm Tuesday;
(b)In week two from 8.30am Wednesday until the commencement of school on Friday;
That [Y] live with the mother at all other times during school terms.
That the children, [X] and [Y] spend time with each party on the following special occasions as follows:
(a)With the Mother in the event they are not already in her care:
(i)on Mother’s Day from 11:00am to 5:00pm;
(ii)on [X]’s birthday from 12:00pm to 4:00pm;
(iii)on [Y]’s birthday from 12:00pm to 4:00pm on a non-school day and from 3:30pm to 7:30pm on a school day;
(iv)on the Mother’s birthday from 12:00pm to 4:00pm on a non-school day and from 3:30pm to 7:30pm on a school day; and
(v)on [Z]’s birthday from 12:00pm to 4:00pm.
(b)With the Father in the event they are not already in his care:
(i)on Father’s Day from 9:00am to 6:00pm;
(ii)on [X]’s birthday from 12:00pm to 4:00pm;
(iii)on [Y]’s birthday from 12:00pm to 4:00pm on a non-school day and from 3:30pm to 7:30pm on a school day; and
(iv)on the Father’s birthday from 9:00am to 6:00pm on a non-school day and from 3:30pm to 7:30pm on a school day.
(c)With the parties during Easter:
(i)[Y] spend time the Mother:
A.from 10:00am Easter Saturday to 4:00pm Easter…

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 DAMANI & DAMANI (No.3)

Details

AGLC: Damani and Damani (No.3) [2019] FCCA 1082
Case: [2019] FCCA 1082
Decision Date: 24 April 2019

CaseChat Overview and Summary

In the matter of DAMANI & DAMANI (No.3), Judge Harland of the Federal Circuit and Family Court of Australia considered an application by the father seeking final parenting orders, including an injunction against the mother's partner. The dispute arose in a high-conflict separation involving two children, [X] and [Y], and concerned arrangements for their care and contact with each parent.

The court was required to determine the most appropriate parenting arrangements for the children, specifically addressing issues of parental responsibility, living arrangements, and time spent with each parent. A key legal issue was whether an interim injunction restraining the mother's partner from contact with the children should be made final, and what final orders would best serve the children's welfare in light of the high conflict between the parents and the separation of the siblings' living arrangements.

Judge Harland applied the principles of the *Family Law Act 1975* (Cth), prioritising the best interests of the children. The court found that equal shared parental responsibility was appropriate, but ordered that [X] live with the father and [Y] live with the father for specific periods and with the mother for other periods, effectively separating the siblings' primary residences. The court also made detailed orders for time spent with each parent during school terms, school holidays, and special occasions, including Christmas and Easter, and addressed the father's request for an injunction by making specific orders regarding the children's living arrangements and time with each parent, which implicitly addressed the concerns that led to the interim injunction.

The court made final orders reflecting these determinations, establishing a complex schedule for the children's living arrangements and time with each parent, and outlining specific provisions for holidays and special occasions. The orders did not include a final injunction against the mother's partner, but rather established a detailed parenting regime designed to manage the high conflict and the separation of the siblings.

Orders

Orders of the court

That the parties have equal shared parental responsibility for [X] born … 2008 and [Y] born … 2012.

That [X] born … 2008 live with the father.

That [X] spend time with the mother during school terms:

(a) on Mondays and Tuesdays from 3:30pm to 8:00pm;

(b) on alternate Sundays from 12:00pm to 6:00pm when [Y] is in her care;

That [Y] live with the father at the following times during school terms:

(a) In week one from 8.30am Wednesday to 8.30am Monday but where Monday is a public holiday time will conclude at 4.00pm Monday or where the weekend falls on the Melbourne Cup weekend until 4.30pm Tuesday;

(b) In week two from 8.30am Wednesday until the commencement of school on Friday;

That [Y] live with the mother at all other times during school terms.

That the children, [X] and [Y] spend time with each party on the following special occasions as follows:

(a) With the Mother in the event they are not already in her care:

(i) on Mother’s Day from 11:00am to 5:00pm;

(ii) on [X]’s birthday from 12:00pm to 4:00pm;

(iii) on [Y]’s birthday from 12:00pm to 4:00pm on a non-school day and from 3:30pm to 7:30pm on a school day;

(iv) on the Mother’s birthday from 12:00pm to 4:00pm on a non-school day and from 3:30pm to 7:30pm on a school day; and

(v) on [Z]’s birthday from 12:00pm to 4:00pm.

(b) With the Father in the event they are not already in his care:

(i) on Father’s Day from 9:00am to 6:00pm;

(ii) on [X]’s birthday from 12:00pm to 4:00pm;

(iii) on [Y]’s birthday from 12:00pm to 4:00pm on a non-school day and from 3:30pm to 7:30pm on a school day; and

(iv) on the Father’s birthday from 9:00am to 6:00pm on a non-school day and from 3:30pm to 7:30pm on a school day.

(i) [Y] spend time the Mother:

A. from 10:00am Easter Saturday to 4:00pm Easter Sunday in odd numbered years commencing 2019;

B. from 4:00pm Easter Sunday to 6:00pm Easter Monday in even numbered years commencing 2020;

(ii) [Y] spend time with the Father:

A. from 4:00pm Easter Sunday to 6:00pm Easter Monday in odd numbered years commencing 2019;

B. from 10:00am Easter Saturday to 4:00pm Easter Sunday in even numbered years commencing 2020;

(iii) [X] spend time with the Mother:

A. from 10:00am to 4:00pm Easter Sunday in odd numbered years commencing 2019;

B. from 4:00pm to 8:00pm Easter Sunday in even numbered years commencing 2020.

(d) With the parties during Christmas:

(i) [Y] spend time with the Mother:

A. from 4:00pm Christmas Eve to 4:00pm Christmas Day in odd numbered years commencing 2019;

B. from 4:00pm Christmas Day to 4:00pm Boxing Day in even numbered years commencing 2020;

(ii) [Y] spend time with the Father:

A. from 4:00pm Christmas Day to 4:00pm Boxing Day in odd numbered years commencing 2019;

B. from 4:00pm Christmas Eve to 4:00pm Christmas Day in even numbered years commencing 2020;

(iii) [X] spend time with the Mother:

A. from 4:00pm to 8:00pm Christmas Eve in odd numbered years commencing 2019;

B. from 4:00pm to 8:00pm Christmas Day in even numbered years commencing 2020.

(e) With the parties during school term holidays:

(i) [Y] spend time with the Father from the conclusion of school on the last day of school term to 4:00pm on the middle Sunday;

(ii) [Y] spend time with the Mother from 4:00pm on the middle Sunday to the commencement of school;

(iii) [X] spend time with the Mother each Monday and Tuesday from 12 noon to 6:00pm when [Y] is in her care.

(f) With the parties during the long Summer school holidays:

(i) [Y] spend time with the Mother:

A. for the second half of the holidays from 4:00pm on the middle Sunday to the commencement of school in odd numbered years commencing 2019;

B. for the first half of the holidays from the conclusion of school on the last day of term to 4:00pm on the middle Sunday in even numbered years commencing 2020;

(ii) [Y] spend time with the Father:

A. for the first half of the holidays from the conclusion of school on the last day of term to 4:00pm on the middle Sunday in odd numbered years commencing 2019;

B. for the second half of the holidays from 4:00pm on the middle Sunday to the commencement of school in even numbered years commencing 2020;

(iii) [X] spend time with the Mother each Monday and Tuesday from 12 noon to 6:00pm when [Y] is in her care.

(g) The children’s holiday time with the parties in accordance with paragraphs (e) and (f) is suspended for the purposes of facilitating time for Easter and Christmas in accordance with paragraphs (c) and (d).

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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