Gulden & Nazmi - [2023] FedCFamC2F 94

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gulden & Nazmi [2023] FedCFamC2F 94

File number(s): MLC 2814 of 2021

Judgment of: JUDGE GLASS

Date of judgment: 15 February 2023

Catchwords: FAMILY LAW– PARENTING – where the father seeks progression to shared care for two and half year old – where the parties are unable to effectively communicate – where the father has perpetrated family violence – where orders providing for sole parental responsibility and for the child to spend less time with his father than sought are in his child’s best interests

Legislation: Family Law Act 1975 (Cth) ss 60CC, 60B, 60CA, 61DA, 65DAA, 65DAC, 65Y, 117(1)

Cases cited:
Boyle & Zahur & Anor (2017) FLC 93-814

Champness & Hanson (2009) FLC 93-407

Eastley & Eastley (2022) FLC 93-094

Groth & Banks [2013] FamCA 430

Keane & Keane & Anor (2021) 62 Fam LR 190

Lennon & Lennon [2011] FamCA 571

Manifold & Alderton (2021) FLC 94-015

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Oberlin & Infeld (2021) FLC 94-017

Division: Division 2 Family Law

Number of paragraphs: 70

Date of last submission/s: 1 February 2023

Date of hearing: 1 February 2023

Place: Melbourne

Counsel for the Applicant: Ms Bacchetti

Solicitor for the Applicant: MS Justice Legal

Counsel for the Respondent: Mr Chislett

Solicitor for the Respondent: Marcou & Associates Pty Ltd

ORDERS

MLC 2814 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GULDEN

Applicant

AND:
MS NAZMI

Respondent

order made by:

JUDGE GLASS

DATE OF ORDER:

15 February 2023

THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for X, born in 2020 (“X”) on the condition that she:
(a)provide to the Father as much prior notice as practicable of any decision she proposes to make with respect to any major long term issue affecting X;
(b)consider any response the Father provides with respect to the proposed decision; and
(c)advise the Father as soon as practicable of her final decision.

2.X live with the Mother.
3.X spend time with the Father:
(a)from 4:30pm Monday until 4:30pm Tuesday each week;
(b)from 2 July 2023, from 9:00am Monday until 4:30pm Tuesday each week;
(c)from the commencement of Term 1 in 2026:
(i)during school terms, each alternate weekend from after school (or 3:30pm if a non-school day) Friday until before school (or 9:00am if a non-school day) Tuesday;
(ii)for half of each school term holidays, as agreed between the parents, and in default of agreement, the first half, commencing at 4.30pm on the last day of school, and concluding at 12.00pm on the middle Saturday;
(iii)for half of the long summer school holidays in each year as agreed between the parents, and in default, on a week about basis, with the Father to have the first week in odd numbers years and the second week in even numbered years and each alternate week thereafter; the first week shall commence at 4.30pm on the last day of…

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 Gulden & Nazmi

Details

AGLC: Gulden & Nazmi [2023] FedCFamC2F 94
Case: [2023] FedCFamC2F 94
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the applicant, Mr Gulden, and the respondent, Ms Nazmi, were parents to a two and a half year old child, X. The Court had to decide on the allocation of parental responsibility for X, as well as the time X was to spend with Mr Gulden. The Court considered the parties' dispute over the allocation of parental responsibility for X and the time X was to spend with Mr Gulden. The Court found that Mr Gulden had perpetrated family violence and that the parties were unable to effectively communicate with one another. The Court held that the allocation of parental responsibility to Ms Nazmi with conditions, and the proposed time arrangements for X to spend with Mr Gulden, were in X’s best interests. The Court ordered that Ms Nazmi have sole parental responsibility for X, on the condition that she provide Mr Gulden with prior notice of any decision she proposes to make with respect to any major long term issue affecting X, consider any response Mr Gulden provides with respect to the proposed decision, and advise Mr Gulden as soon as practicable of her final decision. The Court also ordered that X spend time with Mr Gulden from 4:30pm Monday until 4:30pm Tuesday each week, from 2 July 2023, from 9:00am Monday until 4:30pm Tuesday each week, and from the commencement of Term 1 in 2026, during school terms, each alternate weekend from after school (or 3:30pm if a non-school day) Friday until before school (or 9:00am if a non-school day) Tuesday, for half of each school term holidays, as agreed between the parents, and in default of agreement, the first half, commencing at 4.30pm on the last day of school, and concluding at 12.00pm on the middle Saturday, for half of the long summer school holidays in each year as agreed between the parents, and in default, on a week about basis, with the Father to have the first week in odd numbers years and the second week in even numbered years and each alternate week thereafter; the first week shall commence at 4.30pm on the last day of school and conclude at 12.00pm on the following Saturday, and at such other times as agreed in writing between the parents.

Orders