IDONI & SOHRAB - [2018] FamCA 1128

FAMILY COURT OF AUSTRALIA

IDONI & SOHRAB

[2018] FamCA 1128

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interest of a child – Where the parties are in conflict with respect to parental responsibility and with respect to the time the children shall spend with the mother – Where the mother seeks equal shared parental responsibility and equal shared time with the children – Where the father opposes the orders sought by the mother – Where the children have expressed their views to the family consultant – Where the family consultant does not support the mother’s proposal – Orders made ex-tempore.

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the mother seeks to adjourn the trial – Where the mother has not complied with trial direction orders – Where the father opposes any adjournment – Where the father seeks that the trial proceed on an undefended basis.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Andrew & Delaine [2009] FamCAFC 182
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Mr Idoni

RESPONDENT:

Ms Sohrab

FILE NUMBER:

ADC

143

2013

DATE DELIVERED:

17 December 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

17 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Roberts

SOLICITOR FOR THE APPLICANT:	The Family Law Project
COUNSEL FOR THE RESPONDENT:	Litigant in person

Orders

The mother’s oral application for the adjournment of the trial is dismissed.
All previous orders be discharged.
The father shall have sole responsibility for the children C born … 2007, Z born … 2010 and Y born … 2012 (“the children”).
That the children live with the father.
That the children spend time with the mother as follows:-
a.   Each Sunday from 10.00 am until 6.00 pm;
b.   On 25 December 2018 and each year thereafter from 10.00 am to 1.00 pm;
c.   Such further or other times as may be agreed between the parties.
Each of the parties be at liberty to attend the children’s school for functions and other events to which parents are usually invited SAVE AND EXCEPT that they use their best endeavours to ensure that unless it is their joint agreement to do so, any attendance in the classroom or at parent/teacher evenings will be scheduled at a time not to coincide with the attendance of the other party.
That each party is restrained and an injunction is hereby granted restraining each of them from:-
a. assaulting, harassing, threatening, intimidating, abusing or denigrating the other, the other’s partner or any other member of the other’s family and from permitting any other person to do so;
b. communicating with the other parent save as to any issue that relates to the children or their welfare and in that circumstance the parties will communicate via email, respectful text messaging, a communication book or by telephone if there is agreement to do…

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 IDONI & SOHRAB

Details

AGLC: IDONI & SOHRAB [2018] FamCA 1128
Case: [2018] FamCA 1128
Decision Date: 17 December 2018

CaseChat Overview and Summary

In the Family Court of Australia, Berman J heard an application concerning the parenting arrangements for three children. The mother sought orders for equal shared parental responsibility and equal shared time with the children, a proposal opposed by the father. The children had expressed their views to a family consultant, who did not support the mother's proposal. The mother also made an oral application for an adjournment of the trial, which the father opposed, seeking that the trial proceed on an undefended basis due to the mother's non-compliance with trial directions.

The court was required to determine whether to grant the mother's application for an adjournment and, if not, to make final parenting orders in the best interests of the children, considering their expressed views and the family consultant's report. The court also had to address the father's opposition to the mother's proposed orders for parental responsibility and time.

Berman J dismissed the mother's application for an adjournment, finding that she had not complied with trial directions and that the father opposed the adjournment. The court then proceeded to make ex-tempore orders, discharging previous orders and granting the father sole responsibility for the children, with the children to live with him. The mother was granted specific time with the children, including each Sunday, Christmas Day annually, and such further times as agreed. The court also made orders restraining both parties from certain behaviours, including assaulting or threatening the other, and limiting communication to issues relating to the children, primarily via email, text, or a communication book. Further orders addressed school communications, medical information, and an injunction restraining the mother from leaving the children in the sole care of a Mr G.

Orders

Orders of the court

The mother’s oral application for the adjournment of the trial is dismissed.

All previous orders be discharged.

The father shall have sole responsibility for the children C born … 2007, Z born … 2010 and Y born … 2012 (“the children”).

That the children live with the father.

That the children spend time with the mother as follows:-

a. Each Sunday from 10.00 am until 6.00 pm;

b. On 25 December 2018 and each year thereafter from 10.00 am to 1.00 pm;

c. Such further or other times as may be agreed between the parties.

Each of the parties be at liberty to attend the children’s school for functions and other events to which parents are usually invited SAVE AND EXCEPT that they use their best endeavours to ensure that unless it is their joint agreement to do so, any attendance in the classroom or at parent/teacher evenings will be scheduled at a time not to coincide with the attendance of the other party.

That each party is restrained and an injunction is hereby granted restraining each of them from:-

a. assaulting, harassing, threatening, intimidating, abusing or denigrating the other, the other’s partner or any other member of the other’s family and from permitting any other person to do so;

b. communicating with the other parent save as to any issue that relates to the children or their welfare and in that circumstance the parties will communicate via email, respectful text messaging, a communication book or by telephone if there is agreement to do so;

c. facilitating the children attending upon any counsellor, therapist, psychologist, social worker or specialist health professional without the prior written consent of the other parent;

That to the extent that it is necessary, the father do authorise the children’s school to provide to the mother copies of school reports, newsletters, photographs (at the expense of the mother) and any such other information or other material as the mother may request from time to time.

That the parties advise the other forthwith of any attendance by the children upon a medical practitioner in circumstances of a medical emergency.

10. That the father advise the mother the identity of the children’s medical practitioner and do authorise the medical practitioner to provide to the mother any information as to the children’s medical health.

11. The mother be restrained and an injunction is granted restraining her from leaving the children or any of them in the sole care of Mr G.

12. That all matters be removed from the active pending list of cases

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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