ESFARA & WOLLENS - [2016] FamCA 2

FAMILY COURT OF AUSTRALIA

ESFARA & WOLLENS

[2016] FamCA 2

FAMILY LAW – CHILDREN – Parenting orders - Application by father to spend time with and communicate with children – Allegations of family violence – Father suffers from mental illness – Whether children at risk in unsupervised care of the father – Orders that children spend no time with the father and there be no communication.

FAMILY LAW – CHILDREN – Parenting orders – Consent Orders that children live with the mother – Consent orders that the mother be permitted to change the children’s names.

FAMILY LAW – CHILDREN – Parenting orders – injunctions about the father not approaching the mother or children.

Family Law Act 1975 (Cth) s 60CC

Mauldera & Orbel (2014) FLC 93-602 Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038
APPLICANT:	Mr Esfara

RESPONDENT:

Ms Wollens

INDEPENDENT CHILDREN’S LAWYER:

Fitzgerald & Browne

FILE NUMBER:

HBC

622

2012

DATE DELIVERED:

13 January 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

26, 27, 28, 29 & 30 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Patrick Fitzgerald

SOLICITOR FOR THE APPLICANT:

Legal Aid Commission of Tasmania

COUNSEL FOR THE RESPONDENT:

Mrs MaryAnn Ryan

SOLICITOR FOR THE RESPONDENT:

Butler McIntyre & Butler

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Tony FitzGerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

FitzGerald & Browne

Orders

All previous parenting orders in relation to Y Asfara (sometimes known as ‘H Asfara’) born … 2008 and M Asfara born … 2010 (‘the children’) are discharged.
Ms Wollens (‘the mother’) shall have sole parental responsibility for the children, subject to;
a.BY CONSENT the mother shall have the sole responsibility to amend and/or change Y’s birth certificate and birth registration (registered as ‘H Asfara’) to show his full name as ‘Y H Asfara’ ; and
b.Such sole parental responsibility does not empower her to otherwise change the children’s registered names without the written consent of the father or an order of a Court exercising jurisdiction pursuant to the Family Law Act 1975 (Cth) (‘the Act’).
BY CONSENT the children shall live with the mother.
Mr Asfara (‘the father’) shall spend no time with nor shall he communicate with the children.
The father is restrained from approaching within fifty (50) metres of:-
(a)any place where the mother and children reside or are staying;
(b)any place of employment of the mother; and
(c)any school or sporting venue where the children are or are likely to be present.
BY CONSENT the parents shall generally refer to their eldest child using ‘Y’ as his first name and will encourage others to do likewise.
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.

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 ESFARA & WOLLENS

Details

AGLC: ESFARA & WOLLENS [2016] FamCA 2
Case: [2016] FamCA 2
Decision Date: 13 January 2016

CaseChat Overview and Summary

In the matter of *Asfara & Wollens*, Benjamin J of the Family Court of Australia considered an application by the father for orders allowing him to spend time with and communicate with his children. The proceedings were complicated by allegations of family violence and the father's mental illness, raising concerns about the children's safety in his unsupervised care.

The central legal issues before the court were whether the father should be permitted to spend time with or communicate with the children, and if so, under what conditions, given the alleged family violence and the father's mental health. The court was required to determine if the children were at risk in the unsupervised care of the father and to make parenting orders that best protected their welfare and best interests.

His Honour discharged all previous parenting orders and made new orders by consent. The mother was granted sole parental responsibility for the children, who were to live with her. Crucially, the father was ordered to spend no time with and have no communication with the children. The father was also restrained from approaching within fifty metres of specified locations related to the mother and children. The court also made orders regarding the eldest child's name and the return of subpoenaed documents and exhibits.

Orders

Orders of the court

All previous parenting orders in relation to Y Asfara (sometimes known as ‘H Asfara’) born … 2008 and M Asfara born … 2010 (‘the children’) are discharged.

Ms Wollens (‘the mother’) shall have sole parental responsibility for the children, subject to;

a. BY CONSENT the mother shall have the sole responsibility to amend and/or change Y’s birth certificate and birth registration (registered as ‘H Asfara’) to show his full name as ‘Y H Asfara’ ; and

b. Such sole parental responsibility does not empower her to otherwise change the children’s registered names without the written consent of the father or an order of a Court exercising jurisdiction pursuant to the Family Law Act 1975 (Cth) (‘the Act’).

BY CONSENT the children shall live with the mother.

Mr Asfara (‘the father’) shall spend no time with nor shall he communicate with the children.

The father is restrained from approaching within fifty (50) metres of:-

(a) any place where the mother and children reside or are staying;

(b) any place of employment of the mother; and

BY CONSENT the parents shall generally refer to their eldest child using ‘Y’ as his first name and will encourage others to do likewise.

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.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all Exhibits remain on the court file.

Leave is given for the Independent Children's Lawyer to provide a copy of these orders and underlying reasons to Dr E.

10.

All extant applications (other than applications for costs) be dismissed.

11.

Any application for costs shall be made in accordance with the Family Law Rules.

IT IS CERTIFIED

12.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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