Namvar & Pales - [2023] FedCFamC2F 573

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Namvar & Pales [2023] FedCFamC2F 573

File number(s): SYC 3550 of 2017

Judgment of: JUDGE MORLEY

Date of judgment: 18 May 2023

Catchwords: FAMILY LAW – Parenting – Final Hearing – young child with two sets of half siblings – living with Mother – spending time with Father – no risk found – no family violence found – high volumes of parental conflict – history of Mother acting in an uncooperative fashion – Court finds equal shared parental responsibility to be in the child’s best interests – orders for significant and substantial time with each parent, not equal time.

Legislation:
Evidence Act 1995 (Cth) s 144

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 62G, 65D, 65DAA, 65DAB, 65DA, 65Y

Family Law Regulations 1984 (Cth) reg 13

Cases cited:
Godfrey & Sanders [2007] FamCA 102

Grella & Jamieson [2017] FamCAFC 21

KB & TC [2005] FamCA 458

M & S [2007] FLC 93-313

Mazorski & Albright[2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

McGregor & McGregor [2012] FamCAFC 69

Tait & Densmore [2007] FamCA 1383

Division: Division 2 Family Law

Number of paragraphs: 234

Date of last submission/s: 19 July 2022

Date of hearing: 28-29 June 2022

Place: Sydney

Counsel for the Applicant: Ms Kennedy

Solicitor for the Applicant: Marks Griffiths & Bova Solicitors

Solicitor for the Respondent: The litigant appeared in person.

Counsel for the Independent Children's Lawyer: Mr Gallimore

Solicitor for the Independent Children's Lawyer: Katie Smith Solicitor
ORDERS

SYC 3550 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NAMVAR

Applicant

AND:
MS PALES

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MORLEY

DATE OF ORDER:

18 May 2023

THE COURT ORDERS THAT:
Parental Responsibility
1.That the parties have equal shared parental responsibility for the child X born in 2016 (‘the child’).

Live with/Spend time with
2.That the child live with her Mother.
3.That the child spend time with her Father as follows:
(a)During school term time:
(i)Until the end of Term 2 in 2023, from the end of school on Friday until the start of school on Monday each alternate weekend, with the first such occasion to occur on the next occasion that time would have occurred between the Father and the child under the interim orders of 4 August 2020, and noting that such time is to occur so as to coincide with the time that the child’s maternal sibling Z spends time with their mother.
(ii)For the duration of Term 3 in 2023, from the end of school (or 3:00PM if not a school attendance day) on Thursday until the start of school (or 9:00AM if not a school attendance day) on Monday each alternate weekend.
(iii)From the commencement of Term 4 in 2023 and thereafter, from the end of school (or 3:00PM if not a school attendance day) on Wednesday until the start of school (or 9:00AM if not a school attendance day) on Monday…

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 Namvar & Pales

Details

AGLC: Namvar & Pales [2023] FedCFamC2F 573
Case: [2023] FedCFamC2F 573
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Division 2, the case of Namvar & Pales was heard over three days from 27 to 29 June 2022, with judgment being reserved on 20 July 2022. The case concerns the parenting arrangements for the child, X, born in 2016, of the Applicant Father, Mr Namvar, and the Respondent Mother, Ms Pales. The issues before the Court were parental responsibility, the time the child should spend with her Father, whether the child can travel outside the Commonwealth of Australia with the consent of the other parent, which high school the child will attend, how the parents should communicate, and whether an order should be made restraining the Father from attending any property where the Mother may reside from time to time, coming within 200 metres of any property where the Mother may reside from time to time and from approaching the Mother or X, except pursuant to final orders. The Court found that there was no finding of family violence in this matter and so the presumption set out in section 61DA that it is in X’s best interests for her parents have equal shared parental responsibility for her does apply. The Court found that it is in X’s best interest to spend substantial and significant time with each of her parents. The Court found that the parents’ future capacity to implement an arrangement for X spending equal time with each of them does render such an arrangement not reasonably practicable. The Court made orders that the parties have equal shared parental responsibility for the child, that the child live with her Mother, that the child spend time with her Father as set out in the orders, that the parents be restrained from using any form of physical discipline upon X, and that the parties are restrained from removing the child from Australia without prior written consent of the other parent. The Court declined to make an order that if a parent is unable to care for X overnight, the other parent is to have first option to care for X, as it is likely to lead to further parental conflict and it is in X’s best interest if her carer parent makes appropriate arrangements for her in those circumstances. The Court also declined to make the order sought by the Mother restraining the Father from coming to her property or coming within 200 metres of her or X, as such an order has the flavour of a personal protection injunction, and it is not warranted on the state of the evidence before the Court.

Orders