Darvish & Karo (No 4) - [2024] FedCFamC2F 1058

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…

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 Darvish & Karo (No 4)

Details

AGLC: Darvish & Karo (No 4) [2024] FedCFamC2F 1058
Case: [2024] FedCFamC2F 1058
Decision Date: 26 July 2024

CaseChat Overview and Summary

In the matter of Darvish and Karo, the Federal Circuit and Family Court of Australia (Division 2) addressed a divorce application initiated by Ms Darvish against Mr Karo. The dispute at hand centred on the dissolution of the marriage between the parties, as well as the welfare and care arrangements for their child, X, born in 2016. The court was tasked with determining whether to grant the divorce and, if so, under what conditions, particularly in light of the child's age and the arrangements for their care.

The primary legal issues the court needed to resolve were whether the divorce should be granted despite the lack of proper care arrangements for the child and, if so, under which section of the Family Law Act 1975 (Cth) the divorce order should be made. The court examined the provisions under sections 48 and 55A of the Act to determine whether the divorce should proceed, considering the circumstances of the child’s care.

The court found that while proper arrangements for the care, welfare, and development of the child had not been made, there were compelling circumstances that justified granting the divorce. It concluded that the divorce should take effect under section 55A of the Family Law Act 1975 (Cth), despite the court's dissatisfaction with the care arrangements. The order for divorce was made pursuant to section 48 of the Act, and the court noted that the divorce order would take effect one month from the date of the order. The court also acknowledged the child, X, and noted that the form of the order was subject to review and potential variation under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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

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…