Rosic & Rosic - [2022] FedCFamC2F 1285

Federal Circuit and Family Court of Australia
(DIVISION 2)
Rosic & Rosic [2022] FedCFamC2F 1285

File number(s): ADC 2151 of 2020

Judgment of: JUDGE BROWN

Date of judgment: 23 September 2022

Catchwords:
FAMILY LAW – Parenting – parenting arrangements for child aged 7 – mother has been child’s primary carer since birth – where parents have no capacity to co-parent – family violence – coercive and controlling behaviour – assessment of risk – property – final hearing for property settlement – marriage of 5 years – where the property pool is modest – wife seeks sale of former matrimonial home – husband asserts no equity in property – asserted unsecured loan

FAMILY LAW – Practice and Procedure – Failure of a party to follow directions of the court – failure to defend proceedings with due diligence – application to proceed on undefended basis – matters to be considered

Legislation:
Family Law Act 1975 (Cth) Pt VII, VIII, ss 4, 4AB, 60CA, 60CC, 62G, 68B, 68LA, 75(2), 79, 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 190

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules2021 (Cth) Pt 10.6, rr 1.04, 6.06, 10.26, 10.27

Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth)

Cases cited:
Biltoft & Biltoft (1995) 19 Fam LR 82

Briese & Briese (1986) FLC 91-713

Clauson v Clauson (1995) 18 Fam LR 693

Deiter & Deiter [2011] FamCAFC 82

Ferraro v Ferraro (1992) 16 Fam LR 1

Hickey & Hickey (2003) 30 Fam LR 355

MZZGY v Minister for Immigration & Border Protection

Russell & Russell (1999) 25 Fam LR 629

Taylor v Taylor (1979) 143 CLR 1

Watson & Ling [2013] FamCA 57

Division: Division 2 Family Law

Number of paragraphs: 183

Date of hearing: 12 September 2022

Place: Adelaide

Counsel for the Applicant: Mr Roberts

Solicitor for the Applicant: VP Lawyers

Counsel for the Respondent: In person

Counsel for the Independent Children's Lawyer: Mr Robinson

Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia
ORDERS

ADC 2151 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ROSIC

Applicant

AND:
MR ROSIC

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BROWN

DATE OF ORDER:

23 September 2022

THE COURT ORDERS THAT:
1.The applicant, Ms Rosic (“the wife”) have sole parental responsibility for the child X (“the child”) born in 2015.
2.The said child do live with the wife.
3.Pursuant to section 68B of the Family Law Act 1975 (Cth) the respondent, Mr Rosic (“the husband”) is restrained and an injunction issues restraining him from:
(a)Removing the said child from the wife’s care; and
(b)Attending at the said child’s school of attendance as well as any extra mural activities attended by the said child including any Country B dance lessons or Country B School.

4.A copy of these Orders are to be served personally on the husband by the wife’s solicitor.
5.The husband has leave to…

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: Rosic & Rosic [2022] FedCFamC2F 1285
Case: [2022] FedCFamC2F 1285
Decision Date

CaseChat Overview and Summary

Rosic & Rosic [2022] FedCFamC2F 1285 is a final parenting and property settlement case involving significant allegations of family violence and coercive and controlling behaviour. The most pressing issue for the court was whether it was fair for the parties and congruent with the best interests of the child concerned for the proceedings to be finalised without the significant involvement of one of the parties to it. The court found that the husband had been obstructive and had not engaged in the proceedings in a meaningful way. The court found that the wife had been the primary carer for the child since separation and that the husband had not engaged in therapy or parenting courses as directed by the court. The court also found that the wife had been subject to coercive and controlling behaviour and that the child had been exposed to family violence. The court made orders for sole parental responsibility, restrictions on the husband's contact with the child, and orders for the sale of the property if the husband did not comply with certain conditions.

Orders