FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lucian & Naraz [2022] FedCFamC2F 628
File number(s): NCC 3521 of 2019 Judgment of: JUDGE KEARNEY Date of judgment: 18 May 2022 Catchwords: FAMILY LAW - parenting – 10 year old child - a vulnerable child with complex medical, behavioural and learning needs that requires consistency – where some limited capacity in administering a medical regime is evident - sole parental responsibility appropriate – no unacceptable risk of harm – promotion of meaningful relationship with both parents - best interests of child Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Aldridge & Keaton [2009] FamCAFC 229 at [75]
Johnson and Page [2007] FamCA 1235
Mazorski & Albright [2007] FamCA 520
Division: Division 2 Family Law Number of paragraphs: 260 Date of hearing: 27-29 April 2022 Place: Newcastle Counsel for the Applicant: Mr B Kelly Solicitor for the Applicant: Nash Allen Williams & Wotton Solicitor for the Respondent: Self-represented litigant Counsel for the Independent Children's Lawyer: Mr C Boyd Solicitor for the Independent Children's Lawyer: Intercept Law ORDERS
NCC 3521 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LUCIAN
Applicant
AND: MR NARAZ
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
18 MAY 2022
THE COURT ORDERS THAT:
1.All existing parenting orders are discharged.
2.MS LUCIAN (‘the mother’) shall have sole parental responsibility for X (‘X’) born in 2012.
3.X shall live with the mother.
4.X shall spend time with MR NARAZ (‘the father) as follows:-
(a)each alternate weekend from 5.00pm Friday to 6.00pm Saturday, with the first such weekend to be the weekend immediately following the date of these Orders; and
(b)each year when X does not wake up in the father’s care on X’s birthday –
(i) from 4.00pm until 7.00pm on a school day; and
(ii) from 10.00am until 2.00pm on a non-school day.
(c)each year on Father’s Day from 9.00am to 5.00pm;
(d)each year when X does not wake up in the father’s care on Christmas Day, from 11.00am 25 December until 6.00pm 26 December.
5.To facilitate time in accordance with Order 4, the mother will deliver and collect X from the father’s residence situated at B Street, Suburb C New South Wales PROVIDED THAT if the father’s residence changes to a location more than a 20 kilometre radius from the McDonalds Restaurant at Suburb C, changeovers for X to spend time with the father shall be facilitated by both parties attending the McDonalds Restaurant at Suburb C.
6.To facilitate changeovers in accordance with Order 5, the father will give the mother at least 48 hours written notice of any change to his residential address.
7.Notwithstanding the allocation of sole parental responsibility to the mother, the mother shall keep the father informed about all treatments by doctors and other health professionals for X, including details of all medication prescribed for X and details of all diagnoses for X…
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CaseChat Overview and Summary
The legal issues that the court had to resolve included whether sole parental responsibility should be awarded to one parent or if joint responsibility would be more appropriate. Additionally, the court needed to determine a suitable arrangement for the child to spend time with both parents, given the child's complex needs and the need for consistency in their care. The court also had to consider the provisions of the Family Law Act 1975 (Cth) and relevant case law to ensure the child's best interests were met.
Judge Kearney found that sole parental responsibility should be awarded to the mother, as it was in the child's best interests to have one primary caregiver due to their complex needs and the requirement for consistency in administering a medical regime. The court concluded that there was no unacceptable risk of harm to the child if they spent time with the father under the proposed arrangements. The court determined that the proposed parenting arrangements would facilitate a meaningful relationship between the child and both parents, while also promoting the child's best interests. The orders included provisions for the child to live with the mother, with specific time arrangements for the child to spend with the father, and requirements for the mother to keep the father informed about the child's medical treatments and school reports.
The court made several orders, including that all existing parenting orders were discharged, and sole parental responsibility was awarded to the mother. The child was to live with the mother, with specific time arrangements for the child to spend with the father on alternate weekends, certain significant dates, and when the child does not wake up in the father's care on their birthday or Christmas Day. The mother was also required to provide the father with information about the child's medical treatments and school reports, and could provide copies of the court orders to relevant parties involved in the child's care.
Orders
Orders of the court
NCC 3521 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS LUCIAN
Applicant
AND:
MR NARAZ
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
18 MAY 2022
THE COURT ORDERS THAT:
1. All existing parenting orders are discharged.
2. MS LUCIAN (‘the mother’) shall have sole parental responsibility for X (‘X’) born in 2012.
3. X shall live with the mother.
4. X shall spend time with MR NARAZ (‘the father) as follows:-
(a) each alternate weekend from 5.00pm Friday to 6.00pm Saturday, with the first such weekend to be the weekend immediately following the date of these Orders; and
(b) each year when X does not wake up in the father’s care on X’s birthday –
(i) from 4.00pm until 7.00pm on a school day; and
(ii) from 10.00am until 2.00pm on a non-school day.
(c) each year on Father’s Day from 9.00am to 5.00pm;
(d) each year when X does not wake up in the father’s care on Christmas Day, from 11.00am 25 December until 6.00pm 26 December.
5. To facilitate time in accordance with Order 4, the mother will deliver and collect X from the father’s residence situated at B Street, Suburb C New South Wales PROVIDED THAT if the father’s residence changes to a location more than a 20 kilometre radius from the McDonalds Restaurant at Suburb C, changeovers for X to spend time with the father shall be facilitated by both parties attending the McDonalds Restaurant at Suburb C.
6. To facilitate changeovers in accordance with Order 5, the father will give the mother at least 48 hours written notice of any change to his residential address.
7. Notwithstanding the allocation of sole parental responsibility to the mother, the mother shall keep the father informed about all treatments by doctors and other health professionals for X, including details of all medication prescribed for X and details of all diagnoses for X by medical professionals.
8. Upon written request from the father, the mother shall provide to the father copies of all school reports for X.
9. The mother is permitted to provide a copy of these Orders to X’s educational and extra-curricular activity providers as well as with any medical and allied health professionals who provide services to X.
10. All outstanding applications in relation to Part VII of the Act are withdrawn and dismissed.
11. The Independent Children’s Lawyer is discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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