Glasscock & Nazari - [2022] FedCFamC1F 471

Federal Circuit and Family Court of Australia
(DIVISION 1)
Glasscock & Nazari [2022] FedCFamC1F 471

File number(s): SYC 1460 of 2020

Judgment of: SCHONELL J

Date of judgment: 5 July 2022

Catchwords: FAMILY LAW – CHILDREN – Interim orders – Where the mother sought to take the child overseas for work and for a holiday and also sought sole parental responsibility – Where the father opposed the mother’s travel for work to [Country B] for four months but later agreed provided that a bond be paid – Where the parties are in a highly conflictual relationship – Where the father has not spent physical time with the child since July 2021 – Where the Independent Children’s Lawyer was of the view that time with the father should commence immediately and thus opposed the mother’s travel for work – Where a low risk of the mother not returning was assessed – Ordered that the mother be permitted to travel subject to a bond and undertaking being provided – Where it was appropriate to make an order for the mother to have sole parental responsibility in the interim.

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 65Y, 69ZL, 69ZQ

Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:
DeLuca & Farnham [2019] FamCAFC 100

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Kuebler & Kuebler (1978) FLC 90-434; [1976] FamCA 26

Line v Line (1997) FLC 92-729; [1996] FamCA 145

Division: Division 1 First Instance

Number of paragraphs: 69

Date of hearing: 4 July 2022

Place: Sydney

Solicitor for the Applicant: Mr Kassem

The Respondent: In person

Solicitor for the Independent Children's Lawyer: Mark MacDiarmid Family Law Specialist & Mediator
ORDERS

SYC 1460 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GLASSCOCK

Applicant

AND:
MR NAZARI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

5 JULY 2022

THE COURT ORDERS THAT:
1.To the extent that any prior order of the Court in this matter is inconsistent with the orders below, these orders shall prevail.
2.The applicant mother (“the mother”) shall within 72 hours’ deposit into the trust account of her solicitor $20,000 (“the bond”), with such bond to be made available for the father’s use for X born in 2017 (“the child”) recovery and return to Australia should that become necessary. The respondent father (“the father”) is at liberty upon 48 hours’ notice to make an application in respect of the release of the bond to him. The bond shall be returned to the mother upon her return to Australia on or before 16 November 2022.
3.Upon the mother’s compliance with Order 1 and her undertaking not to deal with in any way, including by way of transfer or encumbering her real estate property in Canberra, pending her return to Australia, the mother is permitted pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) to remove the child from the Commonwealth of Australia…

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 Glasscock & Nazari

Details

AGLC: Glasscock & Nazari [2022] FedCFamC1F 471
Case: [2022] FedCFamC1F 471
Decision Date

CaseChat Overview and Summary

In the matter of Glasscock & Nazari, the court was required to determine several significant issues regarding the care and custody of a child, X, and related matters concerning the parents' responsibilities and rights. The case involves a complex international and familial background, with the parties having lived in multiple countries and the child being born in Australia. The mother and father have a history of conflict and allegations of misconduct against each other, including claims of harassment and intimidation. The court's primary task was to decide on the allocation of parental responsibilities, the permissibility of the child travelling to another country, and the imposition of financial bonds related to the child's travel.

The legal issues before the court encompassed whether sole or equal shared parental responsibility should be assigned to the parties, whether the child should be permitted to travel to Country B, and if so, the appropriate amount of a financial bond to be imposed. The Family Report indicated a highly conflictual relationship between the parents, with both making serious allegations against each other, although no formal diagnoses of mental health issues were noted. The court had to weigh these allegations and the overall welfare of the child in making its decisions.

In delivering the judgment, the court considered the conflicting evidence and the welfare of the child as the paramount concern. The court found that the level of conflict between the parents, as well as the allegations of misconduct, warranted a careful assessment of the child's best interests. The court concluded that the mother should have sole parental responsibility due to the father's unreliability and the high level of conflict. The court also determined that the child could travel to Country B under specific conditions, including the imposition of a financial bond of $40,000 to ensure the child's safe return to Australia.

The final orders of the court were that the mother be granted sole parental responsibility, the child could travel to Country B under the specified conditions, and a bond of $40,000 was to be imposed to secure the child's return to Australia. These orders were made to protect the child's welfare amidst the ongoing conflict between the parents.

Orders

Orders of the court

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Background

Background to the litigation

In light of the above, I identify the issues as articulated between the parties to be as follows:(1)Should an order for sole parental responsibility or equal shared parental responsibility be made;(2)Should travel to Country B be permitted; and (3)If so, should a bond of $20,000 or $40,000 be ordered.Background facts The parties are, to a large extent, international citizens as is demonstrated by the history of their relationship and where they have resided at various periods of time. The Family Report records that the parties first met in Country H, in 2016 and began a long-distance relationship with the father living in Country J and the mother in Country K. The parties married in 2017 and X was born in Sydney. The Family Report records that the parties lived in Country L between 2017 and 2018, in Country M in 2018, and in Country N from 2018 to 2019. The mother and X relocated to Australia in early 2019, and the father was granted a bridging visa in mid 2019 and moved to Sydney. Upon relocating to Sydney, the parties separated in December 2019 but continued living in the home together until early 2020 when the father moved out. The mother commenced proceedings on 4 March 2020. On 25 May 2020, Judge Smith (as he was then) made orders that X was to spend time with her father each Sunday between 2.00 pm and 5.00 pm at an outside venue. The reasons for this was that the father was at that stage living in shared accommodation and did not have appropriate accommodation available to spend longer periods of time with X. Orders were also made that X live with her mother and that the parties have equal shared parental responsibility. X was placed on the Family Law Watchlist. In early 2021, the mother and X moved to Canberra for her employment. The father says that the mother made this decision unilaterally. The mother says the father agreed to this move. Subsequently, the parties were directed to attend a Child Inclusive Conference and on 4 May 2021, the Court made orders that the parties take part in a Family Report. A Family Report was prepared by Regulation 7 Family Consultant Ms G on 29 March 2022, based upon interviews with the parties on 4 March 2022. The Family Report reveals that the parties are in a highly conflictual relationship. Each makes allegations against the other of conduct and behaviour, including harassment and intimidation. The Family Consultant records the following:22. There does not appear to be any drug and alcohol concerns for [Ms Glasscock] or [Mr Nazari].Mental Health 23. [Mr Nazari] has made allegations about [Ms Glasscock] suffering from mental health concerns such as Borderline Personality Disorder and Narcisstic Personality Disorder. [Mr Nazari] discussed that he had made this assessment based on behaviours he had observed, and he was not aware of any formal diagnosis that [Ms Glasscock] had received.24. [Ms Glasscock] stated that whilst [Mr Nazari’s] behaviour had been manipulative and passive aggressive, she was not aware of any specific concerns about [Mr Nazari’s] mental health that would impact his ability to care for [X].

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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File number(s):	SYC 1460 of 2020
Judgment of:	SCHONELL J
Date of judgment:	5 July 2022
Catchwords:	FAMILY LAW – CHILDREN – Interim orders – Where the mother sought to take the child overseas for work and for a holiday and also sought sole parental responsibility – Where the father opposed the mother’s travel for work to [Country B] for four months but later agreed provided that a bond be paid – Where the parties are in a highly conflictual relationship – Where the father has not spent physical time with the child since July 2021 – Where the Independent Children’s Lawyer was of the view that time with the father should commence immediately and thus opposed the mother’s travel for work – Where a low risk of the mother not returning was assessed – Ordered that the mother be permitted to travel subject to a bond and undertaking being provided – Where it was appropriate to make an order for the mother to have sole parental responsibility in the interim.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 65Y, 69ZL, 69ZQ Hague Convention on the Civil Aspects of International Child Abduction
Cases cited:	DeLuca & Farnham [2019] FamCAFC 100 Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 Kuebler & Kuebler (1978) FLC 90-434; [1976] FamCA 26 Line v Line (1997) FLC 92-729; [1996] FamCA 145
Division:	Division 1 First Instance
Number of paragraphs:	69
Date of hearing:	4 July 2022
Place:	Sydney
Solicitor for the Applicant:	Mr Kassem
The Respondent:	In person
Solicitor for the Independent Children's Lawyer:	Mark MacDiarmid Family Law Specialist & Mediator

SYC 1460 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS GLASSCOCK Applicant
AND:	MR NAZARI Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	SCHONELL J
DATE OF ORDER:	5 JULY 2022