NABATI & NABATI (No.2) - [2020] FCCA 3079

FEDERAL CIRCUIT COURT OF AUSTRALIA

NABATI & NABATI (No.2)

[2020] FCCA 3079

Catchwords:
FAMILY LAW – parenting and property – application to vary interim parenting orders – application to vary spousal maintenance order pursuant to section 83 of the Family Law Act 1975 – Father asserts change of circumstances and deterioration of income – serious non-compliance with interim orders – appropriateness of supervised time – inconsistent evidence in relation to the Father’s financial position – change of circumstances not demonstrated – supervised time necessary – child’s best interests – hair follicle drug testing orders made – application otherwise dismissed.

Legislation:

Family Law Act 1975 ss.60CA, 60CC(2A), 60CC(2)(a), 60CC(2)(b), 68Q, 69F, 83

Cases cited:

Foo v Foo (1994) FLC 92-482
Goode & Goode [2006] FamCA 1346
In the Marriage of Astbury [1978] FamCA 28
In the Marriage of Grabar (1976) FLC 90-147
In the Marriage of Lutzke (1979) 5 Fam LR 553
Nabati & Nabati [2019] FCCA 3368
Rice v Asplund (1979) FLC 90-725
SPS v PLS [2008] FamCAFC 16
Watson & Watson [2013] FamCAFC 25

Applicant:

MR NABATI

Respondent:

MS NABATI

File Number:

MLC 4892 of 2019

Judgment of:

Judge Blake

Hearing date:

7 September 2020

Date of Last Submission:

7 September 2020

Delivered at:

Melbourne

Delivered on:

13 November 2020

REPRESENTATION

Counsel for the Applicant:

Mr Mort

Solicitors for the Applicant:

Vernon Da Gama and Associates

Counsel for the Respondent:

Mr Salamanca

Solicitors for the Respondent:

KCL Law

ORDERS

Orders 6 and 7 of the Orders made on 21 November 2019 be vacated.
The Father undergo hair follicle drug testing on two further occasions prior to the final hearing listed on 26 April 2020, the first to occur in the week commencing 1 December 2020 and the second to occur in the week commencing 15 March 2020, such testing to be paid for by the Father AND FURTHER there be Orders set out in terms of Annexure ‘A’ to facilitate same.
The Father provide the results of the hair follicle testing to the mother’s solicitors forthwith upon receiving them.
The Father provide a letter from his General Practitioner explaining the presence of any illicit substance (if applicable).
No later than 14 days prior to the final hearing, the Father file and serve an updated supervision report from a professional supervisor, at his sole expense, with respect to his time spent with X born in 2016.
The application in a case filed on 28 July 2020 be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Nabati & Nabati (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4892 of 2019

MR NABATI

Applicant

And

MS NABATI

Respondent

REASONS FOR JUDGMENT

Introduction

This matter arises from an Application in a Case filed by the Father on 28 July 2020 (‘Application’). It concerns both parenting and financial matters in respect of which the Father seeks interim orders.
In the Application, the Father seeks,…

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 NABATI & NABATI (No.2)

Details

AGLC: NABATI & NABATI (No.2) [2020] FCCA 3079
Case: [2020] FCCA 3079
Decision Date: 13 November 2020

CaseChat Overview and Summary

In *Nabati & Nabati (No.2)*, Judge Blake of the Federal Circuit and Family Court of Australia considered an application by the Father to vary interim parenting orders and a spousal maintenance order. The Father contended that a change of circumstances, specifically a deterioration of his income, warranted these variations. The proceedings also involved allegations of serious non-compliance by the Father with existing interim orders.

The court was required to determine whether the Father had demonstrated a sufficient change in circumstances to justify varying the interim parenting and spousal maintenance orders. A key issue was the appropriateness of supervised time between the Father and the child, X, given the circumstances. The court also had to consider the child's best interests in light of inconsistent evidence presented regarding the Father's financial position and concerns about drug use.

Judge Blake found that the Father had not demonstrated a material change in circumstances to warrant varying the interim orders. The court concluded that supervised time was necessary for the child's safety and well-being. Consequently, the court ordered further hair follicle drug testing for the Father, to be paid for by him, and directed that the results be provided to the Mother's solicitors. The Father was also ordered to provide a letter from his General Practitioner explaining any positive drug test results and to file an updated supervision report concerning his time with X. The Father's application to vary the interim orders was otherwise dismissed.

Orders

Orders of the court

Orders 6 and 7 of the Orders made on 21 November 2019 be vacated.

The Father undergo hair follicle drug testing on two further occasions prior to the final hearing listed on 26 April 2020, the first to occur in the week commencing 1 December 2020 and the second to occur in the week commencing 15 March 2020, such testing to be paid for by the Father AND FURTHER there be Orders set out in terms of Annexure ‘A’ to facilitate same.

The Father provide the results of the hair follicle testing to the mother’s solicitors forthwith upon receiving them.

The Father provide a letter from his General Practitioner explaining the presence of any illicit substance (if applicable).

No later than 14 days prior to the final hearing, the Father file and serve an updated supervision report from a professional supervisor, at his sole expense, with respect to his time spent with X born in 2016.

The application in a case filed on 28 July 2020 be otherwise dismissed.

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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