Kadar and Doumani - [2011] FamCA 285

FAMILY COURT OF AUSTRALIA

KADAR & DOUMANI

[2011] FamCA 285

FAMILY LAW – Application for variation of parenting orders albeit drafted as a general application for orders. No basis to find things had altered. Consideration of the rule in Rice and Asplund.

Family Law Act 1975 (Cth)

Marsden and Winch [2009] FamCAFC 152
Re F: Litigants in person guidelines [2001] FamCA 348
Rice and Asplund (1979) FLC 90-725
Saad v Saad (1993) FLC 92-332
SPS and PLS [2008] FamCAFC 16
Stapleton and Hayes [2011] FamCAFC 70

APPLICANT:

Mr Kadar

RESPONDENT:

Ms Doumani

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

495

2009

DATE DELIVERED:

27 April 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

6 & 7 April 2011

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Arnold

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Lynch

Orders

That the father telephone the mother’s designated telephone landline at 6.30pm each Wednesday night to speak to the child B and the mother do all things required to facilitate such telephone communication.
That each party:
(a)inform the other of their telephone landline and mobile telephone numbers;
(b)instruct their respective family medical practitioners to consult with the other parent about the child; and
(c)advise the other parent of any medical emergency involving or affecting the child
That all extant applications are otherwise dismissed.
That all exhibits be returned to the producing party.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Kadar & Doumani is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 495 of 2009

Mr Kadar

Applicant

And

Ms Doumani

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

B will soon be 13 years of age. For a number of years now he has been the centre of disputes between his parents. This proceeding was another example.
In 2007, final parenting orders were made by Monteith J after a contested hearing. I find that there is no circumstance that would warrant an alteration of the existing orders. These are my reasons.
In his amended application filed 18 February 2011, Mr Kadar (“the father”) applied for a variety of orders. Three proposed orders were of more significance than the others. They were:
(a)equal shared parental responsibility of the child;
(b)that the child live with the husband; and
(c)that the child spend time with his mother from 7.00pm on Saturdays until the commencement of school on the following Monday morning and for one half of all school holidays.
If the father’s position was accepted, it would amount…

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 Kadar and Doumani

Details

AGLC: Kadar and Doumani [2011] FamCA 285
Case: [2011] FamCA 285
Decision Date

CaseChat Overview and Summary

In *Kadar & Doumani* [2011] FamCA 285, the Family Court of Australia considered an application by the father, Mr Kadar, to vary existing final parenting orders made in 2007. The father sought orders for equal shared parental responsibility, that the child live with him, and for specific time with the mother. The mother, Ms Doumani, sought sole parental responsibility, that the child live with her, and for specific time with the father, including telephone communication. The Independent Children’s Lawyer argued for the dismissal of the father's application.

The primary legal issue before the Court was whether there had been a change of circumstances since the 2007 final parenting orders that would warrant a variation of those orders, applying the principles established in *Rice and Asplund* (1979) FLC 90-725 and subsequent Full Court decisions. The Court also considered the father's application for a non-denigration injunction and the mother's application for an order under s 118 of the *Family Law Act 1975* (Cth) to prevent further applications without leave.

The Court found no basis to alter the existing parenting orders. Applying the rule in *Rice and Asplund*, the Court heard all the evidence before determining whether a change of circumstances had occurred. The father's assertions regarding the child's educational performance, alleged breaches of orders by the mother, and difficulties with telephone communication were not substantiated by sufficient corroborative evidence. The Court accepted the mother's explanations for any communication issues and found no evidence of deliberate obstruction. The father's criticisms of the 2007 judgment and his claims regarding legal aid were noted but did not provide grounds for varying the orders. The Court also found no basis for the mother's s 118 application, as the father's application was not considered frivolous or vexatious, but rather a genuine, albeit unsubstantiated, belief about his son's welfare.

Consequently, the Court dismissed the father's application for variation of the parenting orders. The Court also made orders for the exchange of telephone numbers, for medical practitioners to consult with both parents, and for notification of medical emergencies. All other extant applications were dismissed.

Orders