NABATI & NABATI - [2019] FCCA 3368

FEDERAL CIRCUIT COURT OF AUSTRALIA

NABATI & NABATI

[2019] FCCA 3368

Catchwords:
FAMILY LAW – Spousal Maintenance – Child Support – Parenting – the husband did not attend for the Hearing – lack of discovery by the husband – whether the husband has capacity to pay spousal maintenance – whether the wife is unable to support herself – husband paying for outgoings on the family home and other expenses – spousal maintenance ordered on an interim basis – whether there are special circumstances to depart from the administrative assessment of child support – found that no special circumstances exist – application for departure order dismissed – interim parenting orders made consistent with family report recommendations.

Legislation:

Family Law Act 1975 (Cth), ss.72, 74, 75

Child Support (Assessment) Act 1989 (Cth), ss.116, 117

Cases cited:

Beklar v Beklar [2013] FamCA 327

Dwyer v McGuire (1993) FLC 92-420

In the Marriage of Bevan (1993) 120 FLR 283

In the Marriage of Bolton (1992) 107 FLR 131

In the Marriage of Gyselman (1991) 103 FLR 156
In the Marriage of Weir (1992) 110 FLR 403

Applicant:

MR NABATI

Respondent:

MS NABATI

File Number:

MLC 4892 of 2019

Judgment of:

Judge Blake

Hearing date:

30 October 2019

Date of Last Submission:

30 October 2019

Delivered at:

Melbourne

Delivered on:

21 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr Meehan

Solicitors for the Applicant:

Susan Snyder

Counsel for the Respondent:

Mr Salamanca

Solicitors for the Respondent:

KCL Law

ORDERS

The matter be adjourned to the Duty List on 30 January 2020 at 9:45am for Directions.
At the election of the husband, by written notice to the wife’s solicitors no less than 14 days prior to the commencement of contact as set out in sub-paragraphs (2)(a) to (b) herein and until further Order, the husband spend time with X born on … 2016 (“X”) for 3 hours per week on two occasions, supervised by a professional supervisor, at the husband’s costs, as follows:
(a)Each Monday from 2pm to 5pm;
(b)Each Thursday from 2pm to 5pm.
Changeover is to occur at the A Play Centre at E Street, Suburb F, with the wife to deliver X to the Play Centre at the commencement of time and to collect X at the conclusion of time.
The husband may contact X by Skype or Facetime each Tuesday at 6pm with the husband to facilitate and initiate the call, and the wife to make X available for the contact.
The husband be and is hereby restrained by injunction from ingesting, consuming, using, or otherwise being under the influence of any legal or illegal drug or substance, save and except for any legal medication prescribed by a registered medical practitioner and taken and/or used by the husband in accordance with such prescription.
The contact referred to in Order 2 and 4 herein be subject to the husband providing to the solicitors for the wife monthly drug blood or urine tests with the first drug test result to be provided…

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.

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Details

AGLC: NABATI & NABATI [2019] FCCA 3368
Case: [2019] FCCA 3368
Decision Date: 21 November 2019

CaseChat Overview and Summary

In the matter of *Nabati & Nabati*, heard before Judge Blake, the dispute concerned applications for spousal maintenance, child support, and parenting orders. The husband did not attend the hearing, and there were issues regarding his discovery obligations. The wife sought spousal maintenance, arguing she was unable to support herself, while the husband was meeting certain expenses related to the family home and other costs. The wife also applied for a departure from the administrative assessment of child support.

The court was required to determine whether the husband had the capacity to pay spousal maintenance and whether the wife was unable to support herself. Additionally, the court had to consider whether there were special circumstances justifying a departure from the administrative assessment of child support. The court also made interim parenting orders, which were to be consistent with the recommendations of a family report.

The court found that the husband had the capacity to pay spousal maintenance and that the wife was unable to support herself, ordering interim spousal maintenance of $400 per week. Regarding child support, the court determined that no special circumstances existed to warrant a departure from the administrative assessment, and thus dismissed the wife's application for a departure order. Interim parenting orders were made, including supervised contact arrangements for the child, restrictions on the husband's substance use, mandatory drug testing, and the use of a communication application. The husband was also ordered to attend post-separation counselling.

Orders

Orders of the court

The matter be adjourned to the Duty List on 30 January 2020 at 9:45am for Directions.

At the election of the husband, by written notice to the wife’s solicitors no less than 14 days prior to the commencement of contact as set out in sub-paragraphs (2)(a) to (b) herein and until further Order, the husband spend time with X born on … 2016 (“X”) for 3 hours per week on two occasions, supervised by a professional supervisor, at the husband’s costs, as follows:

(a)Each Monday from 2pm to 5pm;

(b) Each Thursday from 2pm to 5pm.

Changeover is to occur at the A Play Centre at E Street, Suburb F, with the wife to deliver X to the Play Centre at the commencement of time and to collect X at the conclusion of time.

The husband may contact X by Skype or Facetime each Tuesday at 6pm with the husband to facilitate and initiate the call, and the wife to make X available for the contact.

The husband be and is hereby restrained by injunction from ingesting, consuming, using, or otherwise being under the influence of any legal or illegal drug or substance, save and except for any legal medication prescribed by a registered medical practitioner and taken and/or used by the husband in accordance with such prescription.

The contact referred to in Order 2 and 4 herein be subject to the husband providing to the solicitors for the wife monthly drug blood or urine tests with the first drug test result to be provided to the solicitors for the wife each month following the making of these Orders, and that he further provide test results of quarterly hair follicle tests with the first testing to take place on the 3rd month following the making of these Orders and quarterly thereafter. The husband continue to undertake the drug testing as referred to in this paragraph for a period of no less than 12 months from the date of these Orders, or until further Order.

For the purposes of the drug tests, the husband attend upon pathology/screening clinic appointed by the wife and the husband pay the costs of such screenings.

In the event that the husband tests positive, then contact as set out in Orders 2 and 4 herein is suspended for the period of the positive test results.

The husband be restrained from discussing illness and medical issues with X.

10.

The husband and the wife subscribe to the “My Family Wizard” App and communicate on this online portal in relation to:

(a)Sharing information about, or discussing issues relating to X;

(b) Organising parenting arrangements in respect of X;

11.

The husband and wife attend a post separation counselling course and provide certificates of completion to the other party via their legal representatives within 7 days of receiving the certificate of completion of such course.

12.

Paragraphs 5(a) to 5(g) of the Orders made by consent on 26 August 2019 remain in full force and effect.

13.

Pursuant to section 74 of the Family Law Act 1975, the husband pay to the wife, by way of spousal maintenance until further Order, the sum of $400 per week, by way of direct deposit into the wife’s nominated bank account.

14.

The wife’s application for a departure from any administrative assessment of child support be dismissed.

15.

Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATION

Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

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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