Demir & Ozden - [2025] FedCFamC2F 80

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Demir & Ozden [2025] FedCFamC2F 80

File number(s): DGC 827 of 2023

Judgment of: JUDGE JENKINS

Date of judgment: 30 January 2025

Catchwords: FAMILY LAW – PARENTING – final orders – 13 year old child – child has strong views of not wanting to see mother – mother seeks shared care arrangement between two states – mother has no insight into child’s needs – no time spent between mother and child since the child was 8 months old – not in the best interests of the child to spend any time or have any contact with the mother.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 65D, 102NA

Cases cited:
Deiter v Deiter [2011] FamCAFC 82

Grella & Jamieson [2017] FamCAFC 21

Isles & Nelissen [2022] FedCFamC1A 97

Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65

Whisprun Pty Ltd v Dixon [2003] HCA 48

Division: Division 2 Family Law

Number of paragraphs: 88

Date of last submission/s: 7 November 2024

Date of hearing: 6 & 7 November 2024

Place: Dandenong

Representative for the Applicant: The mother appearing in person

Counsel for the Respondent: Ms Elleray

Solicitor for the Respondent: Bardo Lawyers

Counsel for the Independent Children's Lawyer: Mr Foo

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

DGC 827 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DEMIR

Applicant

AND:
MR OZDEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

30 JANUARY 2025

THE COURT ORDERS THAT:
1.The father have sole parental responsibility for decision making in relation to all major long-term issues for the child X born in 2011 (“X”).
2.X live with the father.
3.X shall not spend any time with and have no contact with the mother.
4.The father be at liberty to apply for an Australian citizenship and Australian passport for X without the mother’s consent or the need for the mother to sign any documents.
5.X be permitted to travel outside the Commonwealth of Australia without the permission of the mother.
6.All applications be otherwise dismissed.

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).

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 Demir & Ozden

Details

AGLC: Demir & Ozden [2025] FedCFamC2F 80
Case: [2025] FedCFamC2F 80
Decision Date: 30 January 2025

CaseChat Overview and Summary

The matter involved Ms Demir, the applicant, and Mr Ozden, the respondent, in a dispute concerning the care and custody of their child, X, born in 2011. Ms Demir sought a shared care arrangement involving interstate travel, while Mr Ozden opposed this, arguing that any contact with Ms Demir was not in the best interests of the child. The Federal Circuit and Family Court of Australia, Division 2, presided over the case, issuing its decision on 30 January 2025. The court was tasked with determining whether any contact between X and Ms Demir would be beneficial, considering the child's expressed wishes and the lack of a meaningful relationship between X and Ms Demir since the child was eight months old.

The court examined the evidence presented, including the child's strong views against any contact with Ms Demir, and the mother's lack of insight into the child's needs. The court also considered the absence of any meaningful interaction between Ms Demir and X since the child was eight months old. The primary legal issue was whether it was in the best interests of X to have any contact with Ms Demir, and if so, what form that contact should take. The court found that given X's strong opposition to any contact with Ms Demir and the lack of a meaningful relationship, it was not in the child's best interests to have any contact with the mother.

In its reasoning, the court noted that X had been expressing a clear and consistent desire not to see Ms Demir since the child was eight years old. The court found that Ms Demir had failed to appreciate the child's needs and had not engaged in any meaningful relationship with X since the child was eight months old. The court concluded that any contact with Ms Demir would be detrimental to X. Accordingly, the court ordered that X would live with Mr Ozden, that X would have no contact with Ms Demir, and that Mr Ozden would have sole parental responsibility for decision-making regarding all major long-term issues for X. The court also granted Mr Ozden the liberty to apply for an Australian citizenship and passport for X without the mother's consent and permitted X to travel outside Australia without the mother's permission.

Orders

Orders of the court

DGC 827 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS DEMIR

Applicant

AND:

MR OZDEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

30 JANUARY 2025

THE COURT ORDERS THAT:

1. The father have sole parental responsibility for decision making in relation to all major long-term issues for the child X born in 2011 (“X”).

2. X live with the father.

3. X shall not spend any time with and have no contact with the mother.

4. The father be at liberty to apply for an Australian citizenship and Australian passport for X without the mother’s consent or the need for the mother to sign any documents.

5. X be permitted to travel outside the Commonwealth of Australia without the permission of the mother.

6. All applications be otherwise dismissed.

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):	DGC 827 of 2023
Judgment of:	JUDGE JENKINS
Date of judgment:	30 January 2025
Catchwords:	FAMILY LAW – PARENTING – final orders – 13 year old child – child has strong views of not wanting to see mother – mother seeks shared care arrangement between two states – mother has no insight into child’s needs – no time spent between mother and child since the child was 8 months old – not in the best interests of the child to spend any time or have any contact with the mother.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 65D, 102NA
Cases cited:	Deiter v Deiter [2011] FamCAFC 82 Grella & Jamieson [2017] FamCAFC 21 Isles & Nelissen [2022] FedCFamC1A 97 Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 Whisprun Pty Ltd v Dixon [2003] HCA 48
Division:	Division 2 Family Law
Number of paragraphs:	88
Date of last submission/s:	7 November 2024
Date of hearing:	6 & 7 November 2024
Place:	Dandenong
Representative for the Applicant:	The mother appearing in person
Counsel for the Respondent:	Ms Elleray
Solicitor for the Respondent:	Bardo Lawyers
Counsel for the Independent Children's Lawyer:	Mr Foo
Solicitor for the Independent Children's Lawyer:	VM Family Lawyers

DGC 827 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS DEMIR Applicant
AND:	MR OZDEN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE JENKINS
DATE OF ORDER:	30 JANUARY 2025