FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Doshi & Lata [2024] FedCFamC2F 1337
File number(s): PAC 2571 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 27 September 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of children.
FAMILY LAW – PROPERTY – Just and equitable orders made.
Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CE, 60CD(2)(a), 75(2) Cases cited: Lotta & Lotta [2017] FamCA 50 Division: Division 2 Family Law Number of paragraphs: 121 Date of hearing: 26 – 27 August 2024 Place: Parramatta Counsel for the Applicant: Mr Cairns Solicitor for the Applicant: James Papas Solicitors Counsel for the Respondent: Ms Reid Solicitor for the Respondent: Ark Law Lawyers Counsel for the Independent Children's Lawyer: Mr Kelly Solicitor for the Independent Children's Lawyer: Michel & White Lawyers ORDERS
PAC 2571 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DOSHI
Applicant
AND: MR LATA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
27 SEPTEMBER 2024
THE COURT ORDERS THAT:
Parenting
1.All previous parenting orders in relation to the children X born in 2012 and Y born in 2015 ("the children") be discharged.
2.The mother have sole decision-making power in relation to all major long-term issues for the children.
3.The children live with the mother.
4.The children spend time with the father as follows:
(a)Each alternate Friday from 3.00 pm or the conclusion of school until 7.00 pm on the same evening;
(b)On Father's Day from 3.00 pm to 7.00 pm;
(c)On the second day of religious holiday from 3.00 pm to 7.00 pm;
(d)By telephone or video call each Monday and Friday between 6.30 pm and 7.00 pm;
5.Changeovers shall take place at the children’s school if the children are at school or at Suburb B McDonalds if it is not a school day or the children are not at school.
6.Each party be restrained from insulting, belittling, abusing, or degrading the other party or a member of that party's family in the presence of or within hearing distance of the children.
7.Each party be restrained from physically disciplining the children or allowing any other person to do so.
8.In the event of the children being hospitalised or receiving medical attention, the parent spending time with the children shall notify the other parent as soon as practicable after the first contact with either medical practitioner, medical centre or hospital.
9.Both parties are at liberty to obtain all information they may require from any of the children’s medical and allied health professionals and these Orders are sufficient authority for such a purpose.
10.Both parties are at liberty to obtain all information they may require from any of the children’s schools such as copies of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities and these Orders are sufficient authority for such a purpose.
11.Both parties do all acts and all things and give irrevocable authorities necessary to ensure…
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CaseChat Overview and Summary
The court had to decide various legal issues, including the allocation of decision-making responsibilities, the living arrangements for the children, and the equitable distribution of property between the parties. In terms of parenting, the court found that it was in the best interests of the children for the mother to have sole decision-making power in relation to all major long-term issues, while the children would live with the mother and have specified visitation arrangements with the father. The court also imposed restrictions on both parents to ensure the children were not exposed to any form of abuse or degradation. In relation to the property, the court ordered a refinancing of the mortgage to remove the husband's liability, with a financial settlement to follow if the refinancing was not completed within the specified timeframe.
Judge Newbrun, in delivering the judgment, considered the evidence presented by both parties and the welfare of the children as paramount. The court concluded that the mother should have sole decision-making authority to ensure stability and continuity in the children's lives. The visitation schedule for the father was designed to allow him meaningful time with the children while minimising disruption to their schooling and routine. The court emphasised the importance of protecting the children from any form of harm, both emotional and physical. Regarding the property, the court aimed for a fair and equitable distribution, taking into account the contributions of each party and their future needs. The detailed orders regarding the refinancing and subsequent financial distribution aimed to provide clarity and enforceability in the property settlement.
The final orders of the court included specific arrangements for the children's living situation, decision-making responsibilities, and restrictions on the parents' behaviour. The court also detailed the financial obligations and property distribution between the parties, with clear timelines and consequences for non-compliance. The court's orders were designed to provide a stable and equitable outcome for both the children and the separating parents.
Orders
Orders of the court
PAC 2571 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS DOSHI
Applicant
AND:
MR LATA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
27 SEPTEMBER 2024
THE COURT ORDERS THAT:
Parenting
1. All previous parenting orders in relation to the children X born in 2012 and Y born in 2015 ("the children") be discharged.
2. The mother have sole decision-making power in relation to all major long-term issues for the children.
3. The children live with the mother.
4. The children spend time with the father as follows:
(a) Each alternate Friday from 3.00 pm or the conclusion of school until 7.00 pm on the same evening;
(b) On Father's Day from 3.00 pm to 7.00 pm;
(c) On the second day of religious holiday from 3.00 pm to 7.00 pm;
(d) By telephone or video call each Monday and Friday between 6.30 pm and 7.00 pm;
5. Changeovers shall take place at the children’s school if the children are at school or at Suburb B McDonalds if it is not a school day or the children are not at school.
6. Each party be restrained from insulting, belittling, abusing, or degrading the other party or a member of that party's family in the presence of or within hearing distance of the children.
7. Each party be restrained from physically disciplining the children or allowing any other person to do so.
8. In the event of the children being hospitalised or receiving medical attention, the parent spending time with the children shall notify the other parent as soon as practicable after the first contact with either medical practitioner, medical centre or hospital.
9. Both parties are at liberty to obtain all information they may require from any of the children’s medical and allied health professionals and these Orders are sufficient authority for such a purpose.
10. Both parties are at liberty to obtain all information they may require from any of the children’s schools such as copies of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities and these Orders are sufficient authority for such a purpose.
11. Both parties do all acts and all things and give irrevocable authorities necessary to ensure that whichever school the children may attend from time to time shall forward directly to each party copies of each child’s school reports and merit cards, and any written material pertaining to each child’s academic and extra-curricular activities.
Property
12. The wife shall within 90 days of the date of these Orders:
(a) Arrange finance to refinance and discharge the mortgage loan secured against the property known as C Street, Suburb D, being Lot … in DP … (“the property”) so that the husband is not liable for such mortgage loan;
(b) Pay to the husband the sum of $116,342.
13. Simultaneously with the above Order being implemented, the husband shall transfer to the wife his right title and interest in the property.
14. In the event that the wife fails or neglects to comply with Order 12 above, then the husband shall within a further 90 days pay to the wife the sum of $304,659.
15. Failing compliance with Order 14, the parties shall forthwith do all things and sign all documents to cause the property to be sold.
16. Upon sale of the property pursuant to Order 15 above, the proceeds of sale are to be distributed in the following manner and priority:
(a) payment of the costs of sale, including but not limited to agents’ commission and legal fees on the conveyance;
(b) payment of any sums due and owing on rates and charges in respect of the property;
(c) discharge of the mortgage secured over the property;
(d) the balance divided between the husband and the wife so that, taking into account net $114,014 retained by the husband (in assets unrelated to the property) and $7,000 retained by the wife (being her superannuation), there be a distribution of the net total assets of 42.5 per cent to the husband and 57.5 per cent to the wife.
17. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity an operation to the deed, document or instrument, upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
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
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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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