Kazemi & Demian - [2023] FedCFamC2F 217

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kazemi & Demian [2023] FedCFamC2F 217

File number(s): PAC 3865 of 2020

Judgment of: JUDGE MURDOCH

Date of judgment: 6 March 2023

Catchwords: FAMILY LAW – PARENTING – Where the mother asserts a history of family violence including coercive and controlling behaviour by the father but no longer asserts that the child is at an unacceptable risk from spending time with the father – discharge of the Independent Children’s Lawyer where the issues have narrowed significantly- where the father was previously convicted of stalking/intimidation of a third party- finding that the father has perpetrated family violence upon the mother – where it is found that ameliorating the risks to the child arising from the father’s behaviour requires that the child’s time be limited and not include extensive block periods of time during holiday periods- orders made for child to spend three nights per fortnight with the father.

Legislation:
Crimes (sentencing procedure) Act 1999 (NSW) s10

Family Law Act (1975) (Cth) ss 4AB (1), 60B(4), 60CG, 60CC

Cases cited:
B & K [2001] FamCA 880

Carter & Wilson [2023] FedCFamC1A 9

Dieter & Dieter [2007] FamCA 608

Illgen & Yike [2018] FamCA 17

Johnson & Page [2007] FamCA 1235

Line & Line (1997) FLC 92-729

Mazorski v Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Ramzi & Moussa [2022] FedCFamC2F 1473

Zuen & Lhao [2020] FamCAFC 84

Division: Division 2 Family Law

Number of paragraphs: 120

Date of hearing: 23-25 January 2023

Place: Parramatta

Counsel for the Applicant Ms Otrebski

Solicitor for the Applicant Censeo Legal

Counsel for the Respondent Mr Givney

Solicitor for the Respondent Maclarens Lawyers

Independent Children’s Lawyer Ms Karagiannis
ORDERS

PAC 3865 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KAZEMI

Applicant

AND:
MR DEMIAN

Respondent

ANd:
INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE murdoch

DATE OF ORDER:

6 March 2023

THE COURT ORDERS THAT:
1.X born in 2019 (“X”) spend time with the Father as follows:-
(a)commencing on 10 March 2023 from the conclusion of school (or 3:00 pm whichever is the later) Friday to the commencement of school (or 9:00 am whichever is earlier) the following Monday and each alternate weekend thereafter;
(b)from 3:00pm Friday (or the conclusion of school whichever is the later) to 9:00am Monday (or the commencement of school whichever is the earlier) on the weekend that Father’s Day falls;
(a)in odd numbered years on the last day of Ramadan from 9:00am until 1:00pm;
(b)in even numbered years on the last day of Ramadan from 1:00pm until 5:00pm;
(c)on 21 March each year, being Country B New Year, from 9:00am 21 March to 9:00am 22 March; and
(d)such further and/or other times as the parties may agree in writing.

2.Notwithstanding the above Orders X spend time with the mother each year:-
(a)From 3:00pm Friday (or the conclusion of school whichever is the later) to 9:00am Monday (or the commencement of school whichever is the earlier) on…

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 Kazemi & Demian

Details

AGLC: Kazemi & Demian [2023] FedCFamC2F 217
Case: [2023] FedCFamC2F 217
Decision Date

CaseChat Overview and Summary

This case involved a parenting dispute between the parties, Ms Kazemi and Mr Demian, concerning their child, X. The primary issue was determining the appropriate parenting arrangements for X, considering the allegations of family violence made by Ms Kazemi against Mr Demian. The court had to balance the benefit of X maintaining a relationship with both parents against the need to protect X from the potential harm arising from the alleged family violence.

The court found that Mr Demian had perpetrated family violence upon Ms Kazemi, including physical and coercive and controlling behaviour. Despite the father's denials, the court accepted Ms Kazemi's evidence as credible and found that Mr Demian had engaged in such behaviour. The court also found that the parties had significant trust issues and poor communication, which could negatively impact X.

Considering the additional considerations outlined in the Family Law Act, the court found that limiting the time X spends with the father would help mitigate the risks of harm arising from the father's behaviour. The court accepted the court child expert's recommendation that X should spend three nights per fortnight with the father, with changeovers occurring at X's school when possible. The court also ordered that X spend time with the father on three special occasions, as well as with the mother on Mother's Day and for a period of time on Eid.

In summary, the court made orders for X to spend three nights per fortnight with the father, with changeovers occurring at X's school when possible, and for special occasions as sought by the father. The court did not make an order for overseas travel with X, as there was insufficient evidence to ground such an order.

Orders