Sharma and Sharma (No.2) - [2019] FCCA 601

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA & SHARMA (No.2)

[2019] FCCA 601

Catchwords:
FAMILY LAW – Parenting proceedings – proceedings transferred to the Family Court of Australia – order made.

Legislation:

Federal Circuit Court of Australia Act 1999, s.39
Federal Circuit Court Rules 2001, Rule 8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant:

MR SHARMA

First Respondent:

MS SHARMA

File Number:

PAC 2318 of 2016

Judgment of:

Judge Newbrun

Hearing date:

7 March 2019

Date of Last Submission:

7 March 2019

Delivered at:

Parramatta

Delivered on:

12 March 2019

REPRESENTATION

Counsel for the Applicant:

Ms Breeze

Solicitors for the Applicant:

Prime Lawyers

Solicitors for the Applicant:

Ms Hernandez of Forshaw Lawyers

Independent Children’s Lawyer:

Ms Hernandez of Claremont Legal

ORDERS

These parenting proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with such proceedings to be mentioned in that Court on 12 March 2019 at 9:30 am.

NOTATION

The Court will very shortly issue some written Reasons in relation to the transfer of these proceedings to the Family Court of Australia at Parramatta.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2318 of 2016

MR SHARMA

Applicant

And

MS SHARMA

Respondent

REASONS FOR JUDGMENT

The within Reasons for Judgment relate to this Court’s Order of 7 March 2019 that these parenting proceedings be transferred to the Family Court of Australia.
The subject child [X] was born on … 2013.
The mother contends that the father has serious mental health issues. Mr A, psychiatrist, has provided a Family Report.
In the above psychiatrist’s report, it is stated that the father was convicted of manslaughter when he was younger, and was diagnosed with depression about four years ago and treated with medication. He spent some time in gaol. The father was also treated by a psychiatrist and given a monthly injection for schizophrenia. The paternal grandfather was convicted of recruiting a person to assist in a criminal activity or a hit in 2007 and was given eighteen months’ weekend detention.

Issues in dispute

The issues in the parenting dispute include the following:
i)The nature and extent of the father’s mental health, and its effect upon his parenting capacity.
ii)Whether the father perpetrated family violence against the mother during the relationship.
iii)Whether the parties should have equal shared parental responsibility.
iv)The extent to which the child should spend time with the father.

Relevant statutory provisions and principles

The Court refers to the decision of Tree J in Morris & Rosetti [2017] FamCA 249. His Honour sets out in that decision, in relation to transfers of proceedings between this Court and the Family Court of Australia, the relevant statutory provisions and principles, and refers to a Protocol, agreed to between the heads of jurisdiction of this Court and the Family Court of Australia, in relation to such…

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 Sharma and Sharma (No.2)

Details

AGLC: Sharma and Sharma (No.2) [2019] FCCA 601
Case: [2019] FCCA 601
Decision Date: 12 March 2019

CaseChat Overview and Summary

These parenting proceedings involved parties identified as Sharma and Sharma (No.2), brought before Judge Newbrun. The core of the dispute concerned the appropriate jurisdiction for the ongoing parenting matters.

The primary legal issue before the court was whether to transfer the existing parenting proceedings to the Family Court of Australia. This required the court to consider the relevant legislative provisions and principles governing the transfer of such matters between courts.

Judge Newbrun ordered that the parenting proceedings be forthwith transferred to the Family Court of Australia at Parramatta. The proceedings were scheduled to be mentioned in that Court on 12 March 2019 at 9:30 am. The court indicated that written reasons for this decision would be issued shortly.

Orders

Orders of the court

These parenting proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with such proceedings to be mentioned in that Court on 12 March 2019 at 9:30 am.

NOTATION

The Court will very shortly issue some written Reasons in relation to the transfer of these proceedings to the Family Court of Australia at Parramatta.

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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