Kavran & Vinko - [2022] FedCFamC2F 193

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kavran & Vinko [2022] FedCFamC2F 193

File number(s): PAC 616 of 2022

Judgment of: JUDGE STREET

Date of judgment: 28 April 2022

Catchwords: FAMILY LAW – PARENTING – interim application for recovery orders – where the respondent father refused to return the child to the applicant mother, being the primary care giver – issues of mental health and family violence – whether the recovery orders are in the best interests of the child – whether denying the recovery orders imposes an unacceptable risk of harm to the child – recovery and interim orders made

Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 60CC, 61A, 65AA(3), 69ZL, 68L

Cases cited:
Barnham & Timbrell [2021] FedCFamC1F 36

Goode & Goode [2005] FamCA 1346

Division: Division 2 Family Law

Number of paragraphs: 105

Date of hearing: 17 February 2022

Place: Parramatta

Counsel for the applicant: Mr Teo

Solicitor for the respondent: Ms Sechi
ORDERS

PAC 616 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KAVRAN

Applicant

AND:
MR VINKO

Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

17 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The Applicant Mother have sole parental responsibility of the child X (DOB in 2012, aged 9) (“the Child”).
2.The Child live with the Applicant Mother.
3.The Applicant Mother is to collect the Child from Suburb B School by the end of today’s school day.
4.The Respondent Father, by himself his servants or agents, is restrained from attending Suburb B Public School or in any way interfering with the Applicant Mother’s collection of the Child today.
5.The Applicant Mother, if she sees fit to do so, is at liberty to re-enrol the Child at Suburb C Public School immediately.
6.The Respondent Father undertake the parenting program Keeping Kids in Mind, as soon as practicable and within 7 days of completion put on an affidavit explaining his insight as to the impact of the course on his understanding as to the best interests of the Child.
7.The Respondent Father is to file and serve an affidavit by his treating doctor, Dr D, on or before 8 April 2022, explaining his current treatment, compliance to date and the program that is in place for his mental health, and the proposed steps to ensure his continuing functionality and any view by the doctor as to impact of his condition on his ability to care for his nine year old daughter.
8.The Applicant Mother is to facilitate telephone and video access by the daughter with Respondent Father at least twice a week for half an hour and at such other times as she sees fit.
9.The Respondent Father, by himself his servants or agents, is restrained from seeking to remove the child from the Applicant Mother’s care and is restrained from either attending whilst the child is present or making any attempt to remove the child from the child’s school.
10.The Respondent Father is not to come…

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 Kavran & Vinko

Details

AGLC: Kavran & Vinko [2022] FedCFamC2F 193
Case: [2022] FedCFamC2F 193
Decision Date

CaseChat Overview and Summary

The parties, Ms Kavran and Mr Vinko, had a child together in 2012. They separated in 2012 and had an informal parenting arrangement until January 2022. The applicant sought recovery orders in relation to the child. The court found that the child should live with the applicant and that the respondent's conduct was coercive and amounted to child abuse and family violence. The court found that the presumption of shared parental responsibility was rebutted and that it was in the child's best interests for the applicant to have sole parental responsibility. The court made orders for the child to live with the applicant and for the respondent to have telephone and video contact with the child until he provided evidence of his mental health and undertook a parenting course. The court listed the matter for a further interim hearing in April 2022.

Orders