Darzi and Alinejad - [2018] FCCA 2962

FEDERAL CIRCUIT COURT OF AUSTRALIA

DARZI & ALINEJAD

[2018] FCCA 2962

Catchwords:
FAMILY LAW – Parenting – allegations of family violence – legal aid funding – self-represented litigants – the impact of cross-examination on victims of family violence – consideration of the requirements of due process – family advocacy support service – consideration of Family Law Amendment (Family Violence and Cross-Examination Of Parties) Bill 2018 – how the court can conduct proceedings in a way that will minimise risk or damage to parties and their children.

Legislation:

Family Law Act 1975, ss.67ZBB, 69ZN 69ZP, 69ZT, 69ZQ, 69ZX, 135, 136

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Cases cited:

Hopper & Hopper [2016] FCCA 84
Gordon & Gordon [2015] FamCA 616

Other articles cited:
ABC Radio National, ‘Family violence, image based bullying and Parkinson’s’, Life Matters, 22 August, 2018 (Michael McKenzie)
Judge Raymond Finkelstein, ‘The Adversarial System and the Search for Truth’ (2011) 37(1) Monash University Law Review 135-144
Legal and Constitution Affairs Legislation Committee, The Senate, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 [Provisions] (2018)
PricewaterhouseCoopers, ‘Legal Aid funding – Current challenges and the opportunities of cooperative federalism’ (Final report, PwC, December 2009), accessible at < Commission, ‘Access to Justice Arrangements’ (Inquiry Report No. 72, Productivity Commission, 2014), accessible at < Neal SC, Federal budget must increase Legal Aid funding (4 May 2018) Law Council of Australia < Royal Commission into Family Violence Report (2016) accessible at <
Judge Gray, Inquest into the Death of Luke Geoffrey Batty (2015) Coroners Court of Victoria < Cornwall, ‘Family Law Act leaves children vulnerable to violence, NSW Police Minister says’, The Australian (online), 11 July 2018 < Kaspiew at al, ‘Evaluation of the 2006 family law reforms’ (Report, Australian Institute of Family Studies, December 2009)

Judge Joseph Harman, ‘The prevalence of allegations of family violence in proceedings before the Federal Circuit Court of Australia’ (2017) 7(1) Family Law Review 3-19
David Weber, National Legal Aid calls for more funding after new figures reveal domestic violence a factor in 79pc of family law cases (18 April 2016) ABC News < Rachel Carson, ‘Direct Cross Examination in Family Law Matters: A New Approach?’ (Paper presented at AIFS Biannual Conference, Melbourne, 26 July 2018)
Lawrie Moloney et al, ‘Allegations of family violence and child abuse in family law children's proceedings: a pre-reform exploratory study’ (Research Report No 15, Australian Institute of Family Studies, May 2007)
Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014)
KPMG, ‘The cost of violence against women and their children in Australia’ (Final Report, KPMG, May 2016), accessible at < Carson et al, ‘Direct cross examination in family law matters - Incidence and context of direct cross examination involving self-represented litigants’ (Report, Australian Institute of Family Studies, June 2018)

Justice Rares, ‘Is Access to Justice a Right or a Service?’ (Paper presented at the Access to…

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 Darzi and Alinejad

Details

AGLC: Darzi and Alinejad [2018] FCCA 2962
Case: [2018] FCCA 2962
Decision Date: 22 August 2018

CaseChat Overview and Summary

This matter concerned parenting orders between the Applicant, Darzi, and the Respondent, Alinejad, heard by Judge Harman. The dispute revolved around arrangements for the parties' two children, born in 2008 and 2014. The court was required to determine the terms of final parenting orders, which were to be made by consent in accordance with a Terms of Settlement executed by the parties and the Independent Children’s Lawyer.

The court was required to determine the specific arrangements for the children's residence, time spent with each parent, parental responsibility, communication between parents, and provisions for special occasions, overseas travel, and medical emergencies. The Terms of Settlement, incorporated into the court's orders, detailed a phased approach to the father's time with the children, commencing with supervised contact and gradually increasing to unsupervised overnight stays and significant holiday periods. The orders also addressed the mother's sole parental responsibility, with a requirement to inform the father of long-term decisions and consider his views.

The court's reasoning was based on the consent of the parties and the recommendations of the Independent Children’s Lawyer, as evidenced by the executed Terms of Settlement. The legal principles applied were those governing parenting arrangements under the *Family Law Act 1975* (Cth), focusing on the best interests of the children. The court applied sections 65DA(2) and 62B of the Act by including a Fact Sheet detailing the obligations and consequences of contravention of the orders.

By consent, final parenting orders were made in accordance with the Terms of Settlement. All outstanding applications and responses were withdrawn and dismissed. The orders also included provisions for the return or destruction of exhibits and subpoenaed material after the appeal period, and a Fact Sheet was attached to the orders detailing obligations and consequences of contravention.

Orders

Orders of the court

By consent final parenting Orders are made in accordance with the Terms of Settlement executed by the parties and the Independent Children’s Lawyer marked Exhibit ‘A’ attached hereto.

Direct the solicitor for the Applicant to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.

Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

EXHIBIT A

BY CONSENT, IT IS ORDERED:

That all previous Orders be discharged.

That the Mother shall have sole parental responsibility for the children, [X] born 2008 and [Y] born 2014 (“the children”).

The Mother shall inform the Father of any proposed long term decisions that affect the children. Such notification shall be in writing not less than six weeks prior to the decision being made and the Mother shall take into consideration any views of the Father about the decision.

The children live with the Mother.

Unless as otherwise agreed between the parents in writing, the children shall spend time with the Father as follows:

(a) For 2 visits on Saturday 25 August and Saturday 8 September 2018 from 12noon to 2:00pm at the Children’s Contact Services Centre with the Paternal Grandmother to attend to reconnect with the children; following that then

(b) For 3 visits every second Sunday, being 23 September, 7 October and 21 October, from 12noon until 4:00pm supervised by the Paternal Grandmother; then

(c) For 3 visits every second Sunday, being 4 November, 18 November and 2 December, from 10:00am until 4:00pm supervised by the Paternal Grandmother; then

(d) Commencing 16 December, every second Sunday from 10:00am until 6:00pm unsupervised; then

(e) Commencing at the beginning of Term 2, 2019:

(i) Every second weekend on both Saturday and Sunday from 10:00am until 6:00pm (no overnights); and

(ii) 2 additional days from 10:00am until 6:00pm during each school holiday period throughout 2019.

(f) Commencing at the beginning of Term 1, 2020:

(i) Every second weekend from 5:00pm Friday until 6:00pm Sunday; and

(ii) During Terms 1, 2 and 3 school holiday periods, for four days (three overnight periods); and

(iii) During Term 4 school holiday period, for five days (four overnight periods)

(iv) Such time during school holiday periods shall be in addition to the every second weekend time provided for in 5(f)(i).

(g) Commencing at the beginning of Term 1, 2021 and continuing into the future:

(i) Every second weekend from 5:00pm Friday until 6:00pm Sunday; and

(ii) During Terms 1, 2 and 3 school holiday periods, for four days (three overnight periods); and

(iii) During Term 4 school holiday period, for two separate block periods of six days (five overnight periods);

(iv) Such time during school holiday periods shall be in addition to the every second weekend time provided for in 5(g)(i).

For the purposes of the school holiday time in order 5 above, the Father shall nominate in writing to the Mother which days he would like to spend with the children two weeks in advance and the Mother shall confirm by way of written reply she has received the Father’s nominated days.

Commencing in 2019,and notwithstanding any other order, the children shall spend the following special occasions with the parents as follows:

(a) From 10:00am until 6:00pm on Father’s Day with the Father

(b) From 10:00am until 6:00pm on Mother’s Day with the Mother

(c) In odd numbered years, they shall spend time with the Father from 10:00am until 2:00pm on the first day of (religious activity omitted); and

(d) In even numbered years, they shall spend time with the Mother from 10:00am until 2:00pm on the first day of (religious activity omitted).

That for the purposes of changeover, unless otherwise agreed in writing, the Mother shall pick up and drop off the children to and from the Paternal Grandmother at the Paternal Grandmother’s home at Town A.

That the children shall communicate with the Father as follows:

(a) The Father shall provide to the children a suitable mobile phone for telephone communication (“the children’s mobile phone”). The Father shall give this to the Paternal Grandmother to pass over to the Mother at the first visit not facilitated at the Children’s Contact Centre.

(b) The Father is permitted to telephone the children’s mobile phone every Wednesday between 6:30pm and 7:00pm.

(c) The Mother shall be responsible for ensuring the phone has credit, is charged, switched on and that the children are available to take the Father’s telephone call every Wednesday evening.

(d) The Mother shall facilitate any additional telephone calls between the Father and the children should the children wish to communicate with the Father.

10.

The Father shall ensure that he has appropriate car seats and restraints for the children when travelling in a vehicle with the children.

11.

That in the event of a child suffering a medical emergency requiring urgent medical treatment while spending time or living with either parent, the parent having care of the children shall ensure that the other parent is notified urgently and:

(a) Each parent is permitted to call the other parent’s mobile phone number in case of emergency involving the children;

(b) Each parent shall notify the other of the medical practitioner and facility upon which the child/ren attends; and

(c) Both parents shall be authorised to obtain all relevant medical information, reports and other documents upon request, regardless of which parent presented with the child/ren.

12.

Both parents are permitted to travel overseas with the children for the purposes of a holiday during the periods of time the children live with or spend time with each parents as set out in order 5 above, or as otherwise agreed between the parents in writing.

13.

Both parents shall give all necessary consents and sign all documents necessary to obtain and renew passports for each of the children within 14 days of a request from the other parent or Passport Agency to do so.

14.

The parent proposing to travel overseas with the children shall:

(a) Notify the other parent in writing no less than 4 weeks in advance of their intention to travel, proposed destination and travel dates; and will

(b) Provide to the other parent in writing no less than 2 weeks before travelling of the confirmed return flights for the children with flight details, itinerary for travel, addresses and contact numbers for the children whilst overseas.

15.

The parents will communicate with each other only about the children and such communication shall be via email or sms text message, except in case of an emergency involving the child/ren in which case the parents may telephone each other’s mobile phones.

16.

That each parent shall advise the other parent of their current email address and contact telephone numbers and shall notify the other parent of any change to their email or contact telephone numbers in writing within 48 hours of any change to such details occurring.

NOTATIONS:

A. It is the parents’ intention that for any periods of overseas travel with the children that the parents themselves shall accompany the children on such travel.

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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