Guler & Kamara

Case [2021] FCCA 1230

FEDERAL CIRCUIT COURT OF AUSTRALIA

Guler & Kamara [2021] FCCA 1230

File number(s): PAC 668 of 2020
Judgment of: JUDGE OBRADOVIC
Date of judgment: 4 June 2021
Catchwords:

FAMILY LAW – parenting – undefended hearing – where the evidence of the applicant is unchallenged – young child – child’s best interest – applicant to have sole parental responsibility for the child – child to live with applicant – child to spend time with respondent as agreed to between the parents in writing

FAMILY LAW – property – undefended hearing – where the evidence of the applicant is unchallenged – contributions during relationship – overall assessment of contributions – justice and equity – no order for costs
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 75, 79

Child Support Assessment Act 1989 (Cth) s 116

Cases cited:

Bevan & Bevan [2014] FamCAFC 19
Black & Kellner [1992] FamCA 2

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100

Scott & Danton [2014] FamCAFC 203

Stanford v Stanford [2012] HCA 52
Slater & Light [2011] FamCAFC 1
Russell & Russell [1999] FamCA 1875
Teal & Teal [2010] FamCAFC 120
Weir & Weir [1992] FamCA 69

Number of paragraphs: 82
Date of hearing: 25 February 2021
Place: Parramatta
Counsel for the Applicant Ms Haughton
Solicitors for the Applicant Soden Legal
Appearing for the Respondent No appearance

ORDERS

PAC 668 of 2020
BETWEEN:

MS GULER

Applicant
AND:

MR KAMARA

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

4 JUNE 2021

THE COURT ORDERS THAT:

1.The applicant shall have sole parental responsibility for the child, X, born in 2016.

2.The child shall live with the applicant.

3.The child shall spend time with the respondent as agreed to between the parties in writing.

4.X, born in 2016 is permitted to travel internationally, without the need for the consent of the respondent to be provided to the issue of a passport to X, born in 2016. The applicant shall be the only person with ‘parental responsibility’ of the child X, born in 2016 for the purposes of applying for, and being issued with, an Australian passport for X, born in 2016.

5.The applicant be declared solely entitled to the proceeds of sale of the property at B Street, Suburb C, NSW as held in the trust account of Soden Legal to the exclusion of the respondent and for this purpose such funds are to be distributed as directed by the applicant, without the need for any further direction or authority from the respondent.

6.The applicant thereafter be declared the sole legal and beneficial owner of her right, title and interest in and to:

(a)All cash at banks and monies invested in the applicant’s sole name;

(b)All furniture and personal effects in the applicant’s possession;

(c)The Motor Vehicle 1 in the applicant’s possession and registered in her name; and

(d)Any superannuation entitlements received by the applicant and…

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Details
AGLC
Guler & Kamara [2021] FCCA 1230
Case
[2021] FCCA 1230
Decision Date

CaseChat Overview and Summary

In the matter of *Guler & Kamara*, Ms Guler (the applicant) sought various orders against Mr Kamara (the respondent) concerning their child, X, and the division of property. The applicant's primary requests included sole parental responsibility for X, that X live with her, and that X be permitted to travel internationally without the respondent's consent. Additionally, the applicant sought sole entitlement to the proceeds of sale of a property located at B Street, Suburb C, NSW, and a declaration of sole legal and beneficial ownership of various assets in her name.

The court was required to determine several legal issues. These included the appropriate arrangements for the child X, specifically regarding parental responsibility, living arrangements, and international travel. The court also had to consider the division of property, including the proceeds from the sale of the B Street property and other assets held in the parties' respective names. Furthermore, the court needed to address an application for a departure order under the *Child Support Assessment Act 1989* (Cth) and the matter of costs.

Justice Obradovic applied the paramountcy principle in determining matters concerning the child, considering the evidence of the parties' roles during the relationship and since separation. The court noted the applicant's primary role as homemaker and caregiver for X, the respondent's limited and infrequent contact with the child since 2018, and the respondent's history of alcohol dependency and illicit drug use. These factors informed the court's decision regarding parental responsibility, living arrangements, and international travel. The court also addressed the property division by declaring each party the sole legal and beneficial owner of assets in their respective names, with specific orders regarding the proceeds of the B Street property.

The court made orders granting the applicant sole parental responsibility for X, with X to live with the applicant. The child was permitted to spend time with the respondent as agreed in writing and to travel internationally without the respondent's consent, with the applicant being the sole person with parental responsibility for passport purposes. The applicant was declared solely entitled to the proceeds of sale of the B Street property. Each party was declared the sole legal and beneficial owner of assets in their respective names, and they were to be solely responsible for their own liabilities. The application for a departure order under the *Child Support Assessment Act 1989* was dismissed, and there were no orders as to costs.

Orders

Orders of the court

PAC 668 of 2020

BETWEEN:

MS GULER

Applicant

AND:

MR KAMARA

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

4 JUNE 2021

THE COURT ORDERS THAT:

1. The applicant shall have sole parental responsibility for the child, X, born in 2016.

2. The child shall live with the applicant.

3. The child shall spend time with the respondent as agreed to between the parties in writing.

4. X, born in 2016 is permitted to travel internationally, without the need for the consent of the respondent to be provided to the issue of a passport to X, born in 2016. The applicant shall be the only person with ‘parental responsibility’ of the child X, born in 2016 for the purposes of applying for, and being issued with, an Australian passport for X, born in 2016.

5. The applicant be declared solely entitled to the proceeds of sale of the property at B Street, Suburb C, NSW as held in the trust account of Soden Legal to the exclusion of the respondent and for this purpose such funds are to be distributed as directed by the applicant, without the need for any further direction or authority from the respondent.

6. The applicant thereafter be declared the sole legal and beneficial owner of her right, title and interest in and to:

(a) All cash at banks and monies invested in the applicant’s sole name;

(b) All furniture and personal effects in the applicant’s possession;

(c) The Motor Vehicle 1 in the applicant’s possession and registered in her name; and

(d) Any superannuation entitlements received by the applicant and invested by or on her behalf.

7. The respondent thereafter be declared the sole legal and beneficial owner of his right, title and interest in and to:

(a) All cash at banks and monies invested in the respondent’s sole name;

(b) All furniture and personal effects in the respondent’s possession; and

(c) Any superannuation entitlements received by the respondent and invested by him or on his behalf.

8. Unless otherwise provided for in these Orders, each party shall forthwith be declared, entitled to retain and shall relinquish in favour of the other party any claim to any right, title or interest in all items of property presently in the possession or custody of the other party including but not limited to real property, monies held in any bank, building society or credit union, shares, superannuation or life entitlements, motor vehicles, chattels, furniture, furnishings and personal effects.

9. The applicant and respondent are solely responsible for any liabilities in their respective names and hereby indemnify the other in respect of the same.

10. In the event that either party fails to sign any necessary document or instrument or to do any acts required or contemplated by these Orders to be done with such failure continuing for fourteen (14) days, then the Registrar of the Federal Circuit Court of Australia in pursuance of the Orders conferred on him or her under Section 106A of the Family Law Act 1975, as amended, shall have the power to execute any document or instrument in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.

11. The application for a departure order pursuant to section 116(1)(b) of the Child Support Assessment Act 1989 (Cth) is dismissed.

12. There be no order as to costs.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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

The wife seeks orders inter alia as follows: a.That the wife have sole parental responsibility for X; b.That X live with the wife; c.That X spend time with the husband as agreed to between the parties in writing; d.That X be permitted to travel internationally and be issued with a passport without the husband’s consent; e.That the wife be declared solely entitled to the proceeds of sale of the B Street, Suburb C property to the exclusion of the husband; or in the alternative;f.A child support departure order pursuant to s.116(1)(b) of the Child Support Assessment Act 1989 (Cth);g.That each of the parties be declared the sole legal and beneficial owner of their right, title and interest in and to all cash at banks and monies invested, furniture and superannuation entitlements in their respective names; and h.An orders for costs.RELEVANT EVIDENCE Care of the child The wife and the husband, who are both 35 years of age, commenced a relationship in or around early 2004 and began living together in 2007. The parties married in 2015 and separated on a final basis on 10 December 2016. The parties have one child together, X born in 2016. During the parties’ relationship, the wife was the primary homemaker and parent. The wife was responsible for the majority of X’s daily needs including feeding, bathing and her overall care. The husband has never had the sole care of X and has only looked after X when the wife was in reasonable physical proximity. The husband has not spent any time with X since 2018, her second birthday. X is now nearing the age of 5 years. From the period after separation and prior to X’s second birthday, the husband spent less than 10 occasions with X, which did not last longer than one hour on each occasion. Further, the husband has not spent any overnight or unsupervised time with X since separation. In or about July 2017, the parties reached an informal agreement whereby the husband would spend supervised time with X, however the husband would often cancel or not show at any arranged visit. In 2018, the wife arranged for an overseas trip with X to the Country D. The husband initially provided consent for X to travel overseas, however refused to sign the passport application for X. Since separation, the wife has had minimal contact with the husband. On the few occasions that the husband has contacted the wife, it was to check up on her and not X. For example, on 28 January 2019, the husband emailed the wife stating “fuck I miss you babe”. Further, on 21 July 2019, the wife received an email from the husband, which attached a photograph of correspondence addressed to the wife reminding her that she was overdue for a cervical screening. Husband’s illicit substance use and alcohol dependency The husband has a well-documented history of alcohol dependency and illicit drug use, particularly when the Court has regard to the wife’s evidence and police records marked as Exhibit 1 in these proceedings. The wife says that she first became aware of the husband’s drug use in 2014 and that he was largely addicted to crystal methamphetamine (“ICE”). The wife further says that she has found, on numerous occasions, drug paraphernalia, such as glass pipes, ice crystals and foils, throughout their home.

Decision

Reasons for decision

There are no circumstances justifying the making of a costs order, lest of all an indemnity costs order, and departing from the usual rule that each party pay its own costs. Conclusion For all of those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

Ratio Decidendi

Legal Principle Established

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