Darvish & Karo (No 4)
[2024] FedCFamC2F 1058
•26 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Darvish & Karo (No 4) [2024] FedCFamC2F 1058
File number(s): SYC 9035 of 2024 Judgment of: JUDGE STREET Date of judgment: 26 July 2024 Catchwords: FAMILY LAW– Divorce application – order made Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Division: Division 2 Family Law Number of paragraphs: 9 Date of hearing: 26 July 2024 Place: Sydney Counsel for the Applicant: Ms S Mahony Solicitor for the Applicant: I & J Law Respondent: Appeared via video and audio-link ORDERS
SYC 9035 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DARVISH
Applicant
AND: MR KARO
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
26 JULY 2024
THE COURT ORDERS THAT:
1.There is an order for divorce of the parties to the marriage pursuant to section 48 of the Family Law Act 1975 (Cth).
THE COURT DECLARES THAT:
2.There is a child of the marriage who is not attained yet the age 18 years, being X, born in 2016 (“the child”), and is not satisfied that proper arrangements have been made for the care welfare and development of that child, however, the Court finds that there are circumstances by reason of which the divorce should take effect pursuant to section 55A of the Family Law Act 1975 (Cth) even though the Court is not satisfied that such arrangements have been made.
THE COURT NOTES THAT:
A.Pursuant to section 55 of the Family Law Act 1975 (Cth) the divorce order takes effect at the expiration of one month from today.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
Having dismissed the husband’s challenging jurisdiction and stay, the only criteria for the making of a divorce order is that there has been an irretrievable breakdown of marriage by reason of there being a separation of 12 months or more. The chronology is as follows:
CHRONOLOGY
Date Event 1980 The husband is born in City G, Country B. 1987 The wife is born in City H, Country J. 2008 Marriage contract of the parties at Town L, Country B. 2008 The Registrar executes the marriage certificate of the parties. 2016 The child of the parties is born. April 2022 The husband moves to Country B. April 2022 An allegation of domestic violence is made against the husband. 23 April 2022 The parties separate in Australia, the wife left home with the child. 9 June 2022 A parenting plan is signed both parties which is in place until 1 February 2023.
The child lives the wife and she has primary parental responsibility, encouraged video calls no less than one per week.29 November 2023 The relevant date under s 39 for jurisdiction. 29 November 2023 An Application for divorce is filed by the wife with plans to make changes to the parenting arrangements and would like the husband to pay for child support. November 2023 Alleged detention and interrogation of the husband in relation to City G Public Prosecution for entering the maternal grandfather’s house. Late 2023 The husband commences proceedings for custody for the child in the Country B Court. 2023 The husband remarries in Country B to Ms K. Early 2024 The husband commences two proceedings for divorce and visitation right. Early 2024 Purported service of notice of three proceedings filed by the father with the Court of Country B. Early 2024 The husband made complaints to the Child Protection Service in relation to the welfare of the child. Early 2024 A purported acceptance of valid service of notice by judge of the Court of Country B. Early 2024 The husband files a response to divorce, which sought dismissal of the divorce application. 1 April 2024 Alleged last video contact between the husband and child. 31 May 2024 Order by Judge Boyle fixing matter for hearing, timetable for evidence 20 June 2024 Wife files consolidated affidavit (3 days late under order 2 made on 31 May 2024) 24 June 2024 The husband serves notice to produce 1 July 2024 Husband’s affidavit evidence including expert due, not filed under order 3 made on 31 May 2024 18 July 2024 The husband files application in a proceeding for vacation of hearing date, adjournment and production of documents
These proceedings were commenced under pt VI of the Family Law Act 1975 (Cth) (“the Act”) on 29 November 2023 for divorce. The Court has dealt with, separately, an application for an adjournment, and refused the same.
The Court dealt with the husband’s challenge to jurisdiction, and then an application for a stay on the grounds of Australia being a clearly inappropriate forum. These applications brought by the husband were unsuccessful. The husband repeated a request to this Court to adjourn the divorce proceedings in circumstances where the husband has informed the Court that he has taken steps, in the proceedings in Country B, to try and obtain orders for custody of the child who has been living in Australia. There is no proper basis for an adjournment, and indeed the conduct by the husband warrants the matter proceeding expeditiously today. It is in the best interests of the child to proceed to hear the divorce application today.
The Court is satisfied that it is appropriate to make the divorce order was sought by the wife, and to put in place appropriate orders in respect of the child, and to restrain the husband from taking any further steps in those proceedings in Country B, and has made such orders. There is no proper basis, in accordance with the interests of the administration of justice, to grant any adjournment. The Court has taken into account the principles under s 43 of the Act and the principles in s 60B and s 60CA of the Act, in terms of the best interest of the child, and s 65AA of the Act, and the principles in s 69Z of the Act, and the overarching purpose in s 95 of the Act.
In determining whether or not an order for divorce should be made under s 48 of the Act, the Court is concerned with determining whether there has been an irretrievable breakdown of marriage, as identified in that provision. The history of the parties is identified in the above chronology. The husband contends that even though he had moved overseas, there was not an intention, he alleges, for the marriage to be at an end. The husband contends such an intention was formed by him, it appears, in November 2023.
The endeavours by the husband to exercise control over these proceedings, and when the intention was formed, are in one view a form of controlling behaviour. It is not necessary for the Court to determine that on this occasion. Nonetheless, it is apparent from the wife's evidence that it was communicated to the husband that the marriage was at an end at the time of their separation, on 23 April 2022 by permanently leaving the home with the child.
The Court does not accept the husband’s contention that his intention should govern the situation, so that there was no irretrievable breakdown until he decided that he did not want the relationship to continue, in November 2023. That alleged intention is also not one that sits neatly with the affidavit evidence put on by the husband contending some possibility of reconciliation. All of which appears to have been designed to try and delay these proceedings so that the husband could obtain some forensic advantage in these proceedings he has commenced in Country B.
The Court finds that there has been an irretrievable breakdown of marriage as a result of the separation that occurred on 23 April 2022, and that the criteria for the making of a divorce order has been made out. The Court is satisfied that an order for divorce should be made under s 48 of the Act. The Court is satisfied that the husband will attend a mediation in relation to parenting, and accordingly, makes a declaration under s 55A of the Act.
It is for these reasons that Court makes the above final orders.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Oral Published Reasons for Judgment of Judge Street. Associate:
Dated: 7 August 2024
0
2