IDONI & SOHRAB - [2015] FamCA 350

FAMILY COURT OF AUSTRALIA

IDONI & SOHRAB

[2015] FamCA 350

FAMILY LAW – CHILDREN – Final Orders – with whom a child lives – whether equal time is in best interests of the children – allegations of family violence directed to mother’s current partner – father’s ability to foster meaningful relationship with other parent – best interests of the children - benefit to the children of maintaining meaningful relationship – orders made for children to spend equal time with parents.

Family Law Act 1975 (Cth) s 4AB, 60B, 60CA, 60CC, 61DA, 65DAA
Family Law Legislation Amendment (Family Violence & Other Measures Act 2011 (Cth)
Evidence Act 1995 (Cth) s 128

AMS v AIF (1999) 199 CLR 160
Andrew & Delaine [2009] FamCAFC 182
Mazorski v Albright (2008) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Idoni

RESPONDENT:

Ms Sohrab

INDEPENDENT CHILDREN’S LAWYER:

Hume Taylor and Co

FILE NUMBER:

ADC

143

2013

DATE DELIVERED:

14 May 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

28, 29, 30 April 2015 and 1 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fryer

SOLICITOR FOR THE APPLICANT:

Adelaide Lawyers

COUNSEL FOR THE RESPONDENT:

Ms DuBarry

SOLICITOR FOR THE RESPONDENT:

Vicki Lehmann and Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Childs

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hume Taylor and Co

UPON NOTING that the father intends to be responsible for the private school fees and other costs and charges likely to be incurred by the children in respect of their attendance at S Primary School but would invite a contribution to those fees, costs and charges from the mother

Orders

That the parties have equal shared parental responsibility for C born … 2007, Z born … 2010 and Y born … 2012.
That until the commencement of first term in (the 2016 academic year), C shall live with the father.
That until the commencement of the 2016 academic year, C shall spend time with the mother as follows:-
(a)from the conclusion of school on Thursday until the commencement of school on the following Monday (but if a public holiday then until 4pm) and each alternate week thereafter commencing 21 May 2015;
(b)for the first week of the end of third term holiday period from 4pm Friday until 4pm the following Saturday;
(c)for half of the Christmas school holidays on a week on/week off basis PROVIDED that the three children shall be together for the Christmas school holidays;
(d)from 4pm Christmas Day until 4pm Boxing Day in 2015 and each alternate year thereafter;
(e)from 4pm Christmas Eve until 4pm Christmas Day in 2016 and each alternate year thereafter.
That until the commencement of the 2016 academic year, Z and Y shall live with the mother.
That until the commencement of the 2016 academic year Z and Y shall spend time with the father as follows:-
(a)from the conclusion of school on Thursday until the commencement of school on the following Monday (but…

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 [2015] FamCA 350
Case: [2015] FamCA 350
Decision Date: 14 May 2015

CaseChat Overview and Summary

This matter concerned the parenting arrangements for three children, C, Z, and Y, born in 2007, 2010, and 2012 respectively. The proceedings were before Berman J. The court was required to make orders regarding the children's living arrangements, time spent with each parent, and related matters, including communication between the parents and school enrolments.

The court was tasked with determining the specific details of shared parental responsibility, including the primary residence of the children and the schedule for their time with each parent. This involved establishing a framework for the children's daily lives, holidays, and special occasions, as well as addressing practical considerations such as communication protocols, school arrangements, and the conduct of the parties towards each other and the children. The court also had to consider the appointment of an Independent Children's Lawyer.

Berman J made orders for equal shared parental responsibility for all three children. The orders established a phased approach to the children's living arrangements, with C initially living with the father and Z and Y with the mother until the commencement of the 2016 academic year. A detailed schedule for time spent with the non-resident parent was set out for this period, including specific provisions for school holidays and alternating arrangements for Christmas. From the commencement of the 2016 academic year, the children were to live with the parties on a week-about basis. The court also made orders regarding Father's Day and Mother's Day, communication between the parents, school enrolments and attendance at school functions, and imposed significant restrictions on the parties' conduct towards each other and concerning the children's welfare, including prohibitions on assault, harassment, and certain communications. The appointment of the Independent Children's Lawyer was discharged, and both parties were ordered to complete a parenting program.

Orders

Orders of the court

That the parties have equal shared parental responsibility for C born … 2007, Z born … 2010 and Y born … 2012.

That until the commencement of first term in (the 2016 academic year), C shall live with the father.

That until the commencement of the 2016 academic year, C shall spend time with the mother as follows:-

(a) from the conclusion of school on Thursday until the commencement of school on the following Monday (but if a public holiday then until 4pm) and each alternate week thereafter commencing 21 May 2015;

(b) for the first week of the end of third term holiday period from 4pm Friday until 4pm the following Saturday;

(c) for half of the Christmas school holidays on a week on/week off basis PROVIDED that the three children shall be together for the Christmas school holidays;

(d) from 4pm Christmas Day until 4pm Boxing Day in 2015 and each alternate year thereafter;

(e) from 4pm Christmas Eve until 4pm Christmas Day in 2016 and each alternate year thereafter.

That until the commencement of the 2016 academic year, Z and Y shall live with the mother.

That until the commencement of the 2016 academic year Z and Y shall spend time with the father as follows:-

(b) for the second week of the end of third term holiday period from 4pm Saturday until 4pm the following Sunday;

(c) for half of the Christmas school holidays on a week on/week off basis PROVIDED that the three children shall be together for the Christmas school holidays;

(d) from 4pm Christmas Eve until 4pm Christmas Day in 2015 and each alternate year thereafter;

(e) from 4pm Christmas Day until 4pm Boxing Day in 2016 and each alternate year thereafter.

That the operation of paragraph 3 (a) and 5 (a) are suspended during all periods of school holidays.

That as and from the commencement of the 2016 academic year, the children shall live with the parties on a week about basis from the conclusion of school on Friday to the conclusion of school on the following Friday (or if not a school day THEN until 4pm in each case) PROVIDED THAT the parent with whom the children live with on the last period of the school holidays shall commence their time with the children on the second week of the new school term.

The children shall spend time with the father on Father’s Day from 9am until 6pm and with the mother on Mother’s Day from 9am until 6pm.

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

10.

That all handovers that do not take place at the children’s school shall occur at McDonald’s Restaurant … or at such other place as the parties may agree.

11.

That each party is to keep the other of them informed by the provision of a current contact mobile telephone number and the residential address where the children are to primarily reside.

12.

That each party is to contact the other in the event of an emergency involving any of the children.

13.

That each of the parties will facilitate the children being able to telephone the non-residential parent upon their request.

14.

That the parties shall ensure that all communication between them is conducted in an appropriate and respectful manner.

15.

That the parties shall do all things necessary and sign all documents as may be required to ensure that C and Z (and if so agreed Y) are enrolled at S Primary School, Suburb E for the 2015 and 2016 academic years.

16.

The parties will do all things necessary to change any current enrolment in respect of the child C to reflect that there is a joint enrolment by the parties and that the school will have and record the separate contact details of each of the parties.

17.

That the parties will do all things necessary to cause Y to be enrolled and to attend at a kindergarten or early learning centre in 2016 (if not available at S Primary School) and that each of the parties will authorise the children’s kindergarten, school or early learning centre to release to the other copies of school reports, newsletters, photographs and other materials to which parents are usually entitled.

18.

That each of the parties will be at liberty to attend all kindergarten, school or early learning centre functions and other events to which the parents are usually invited SAVE AND EXCEPT that they shall 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.

19.

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;

(d) without admission, physically disciplining any of the children or from permitting any other person to do so;

(e) without admission, consuming illicit substances or alcohol to excess during any period of time that the children are in their care or permitting any other person to do so.

20.

That each party do complete an attend the Kids R First Parenting Program within eight (8) months of the date of this order.

21.

The appointment of the Independent Children’s Lawyer be discharged.

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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