Magar and Rastogi - [2019] FamCA 545

FAMILY COURT OF AUSTRALIA

MAGAR & RASTOGI

[2019] FamCA 545

FAMILY LAW – CHILDREN – With whom a child lives – Where the child has lived in the primary care of the father and the paternal family since birth – Where the mother has asserted that the paternal family kept her prisoner and plotted to kill her – Where the mother left Australia following the child’s birth and consent orders were made – Where the mother has returned to Australia and seeks the child transitions into her full-time care –Where the family consultant considered it likely that the paternal grandmother was more likely the primary carer for the child – Where the father has re-married and there is concern that the stepmother may usurp the mother’s role with the child – Where the family consultant has observed a strong, secure and comfortable attachment between the child and the mother – Where the father does not appear attuned to the child – Best interests of the child – Effect of change and factors pursuant to section 60CC of the Family Law Act 1975 (Cth) – Orders

Family Law Act 1975 (Cth) ss 60B(1) 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 61DA(4)

Baglio & Baglio [2013] FamCA 105
Champness & Hanson (2009) FLC 93-407
Sigley & Evor [2011] FamCAFC 22

APPLICANT:

Ms Magar

RESPONDENT:

Mr Rastogi

FILE NUMBER:

ADC

3356

2013

DATE DELIVERED:

14 August 2019

PLACE DELIVERED:

Darwin

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

13, 14 & 15 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smith

SOLICITOR FOR THE APPLICANT:

Harry Alevizos
Barrister & Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Horvat

SOLICITOR FOR THE RESPONDENT:

Adelta Legal

Orders

That the mother shall have sole parental responsibility for M born … 2013 (“the child”).
That the child shall live with the mother.
That the child shall spend time with the father as follows:-
(a)Each alternate weekend from the conclusion of school on Thursday until the commencement of school on the following Tuesday;
(b)For one half of all short school holidays as agreed between the parties but in default of agreement from the conclusion of school on the last day of term until 5.00 pm eight (8) days thereafter;
(c)For the long school holidays on a week about basis commencing:-
(i)At 5.00 pm on Friday of the second week of the holidays in 2019 and in each alternate year thereafter;
(ii)From the conclusion of school Friday and concluding at 5.00 pm in 2020 and in each alternate year thereafter.
(d)With the mother at all other times other than as may be agreed between the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Magar & Rastogi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment…

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 Magar and Rastogi

Details

AGLC: Magar and Rastogi [2019] FamCA 545
Case: [2019] FamCA 545
Decision Date: 14 August 2019

CaseChat Overview and Summary

In the matter of *Magar and Rastogi*, Berman J of the Federal Circuit Court of Australia determined parenting orders concerning the child, M. The dispute centred on the allocation of parental responsibility and the arrangements for the child's residence and time spent with each parent.

The court was required to determine the most appropriate orders for M's upbringing, specifically addressing who would have sole parental responsibility, where M would live, and the specific schedule for M to spend time with the father. These determinations were to be made in accordance with the overarching principles of the *Family Law Act 1975* (Cth), which prioritises the best interests of the child.

Berman J made orders granting the mother sole parental responsibility for M and stipulating that M would live with the mother. The court then detailed a specific schedule for M to spend time with the father, encompassing alternate weekends, half of all short school holidays, and a week-about arrangement for long school holidays, with provisions for default in agreement. The orders also stipulated that the mother would have M at all other times unless otherwise agreed.

Orders

Orders of the court

That the mother shall have sole parental responsibility for M born … 2013 (“the child”).

That the child shall live with the mother.

That the child shall spend time with the father as follows:-

(a) Each alternate weekend from the conclusion of school on Thursday until the commencement of school on the following Tuesday;

(b) For one half of all short school holidays as agreed between the parties but in default of agreement from the conclusion of school on the last day of term until 5.00 pm eight (8) days thereafter;

(i) At 5.00 pm on Friday of the second week of the holidays in 2019 and in each alternate year thereafter;

(ii) From the conclusion of school Friday and concluding at 5.00 pm in 2020 and in each alternate year thereafter.

(d) With the mother at all other times other than as may be agreed between the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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