SIMEN & SIMEN (No.2) - [2020] FCCA 1420

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMEN & SIMEN (No.2)

[2020] FCCA 1420

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, r.8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant:

MR SIMEN

Respondent:

MS SIMEN

File Number:

PAC 1734 of 2019

Judgment of:

Judge Newbrun

Hearing date:

1 June 2020

Date of Last Submission:

1 June 2020

Delivered at:

Parramatta

Delivered on:

5 June 2020

REPRESENTATION

Solicitors for the Applicant:

Ms A Godden - Godden Lawyers

Solicitors for the Respondent:	Mr Maddox - Prasad Legal Solutions
Solicitors for the Independent Children’s Lawyer	Mark Macdiarmid Family Law Specialist

ORDERS

These proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with the matter to be mentioned on 11 June 2020 at 12:30pm.
The parties and ICL are required to dial in on the following number 1800 132 423, and at the prompt enter the guest passcode ... for the above mention.

IT IS NOTED that publication of this judgment under the pseudonym Simen & Simen (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 1734 of 2019

MR SIMEN

Applicant

And

MS SIMEN

Respondent

REASONS FOR JUDGMENT

Introduction

The within Reasons for Judgment relate to this Court’s Order of today that these parenting proceedings be transferred to the Family Court of Australia at Parramatta.
The subject child is X born in 2010.
The father is aged 44 years, and the mother 42 years. The parties commenced a relationship in 2003 and married in 2005. They separated under the one roof in about July 2018, and the father left the former matrimonial home in January 2019.
The father suffered from neurological health issues between 2011 and 2016. He consulted with a neurologist in 2015. The neurologist recorded that the father presented with frequent episodic events of uncertain aetiology characterised by periods (30 to 60 minutes) of aberrant behaviour, confusion, ataxia and slurred slow speech followed by hypersomnia. The father was treated with medication for a period. His neurologist discussed a differential diagnosis with the father of psychogenic non-epileptic events precipitated by psychological stressors.
The father has commenced a new relationship with Ms D who is aged 48 years. They now live together with two of Ms D foster children.
Interim parenting orders were made on 30 September 2019 providing for the child to spend time with the father each alternate Saturday and Sunday from 8 AM until 6:30 PM, on each Monday from 4 PM until 6:30 PM, and from 8 AM each Thursday and Friday and 7:25 AM each Tuesday, to take the child to school.
It appears the child spent time with the father in accordance with the above orders for about one month. However, those arrangements broke down by October 2019 when the child refused to spend time…

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 SIMEN & SIMEN (No.2)

Details

AGLC: Simen and Simen (No.2) [2020] FCCA 1420
Case: [2020] FCCA 1420
Decision Date: 5 June 2020

CaseChat Overview and Summary

In *Simen & Simen (No.2)*, the proceedings concerned parenting matters that had been transferred to the Family Court of Australia. The case came before Judge Newbrun for determination.

The central legal issue before the court was the appropriate forum for the ongoing parenting proceedings, specifically whether to transfer the matter to the Family Court of Australia.

Judge Newbrun ordered that the proceedings be forthwith transferred to the Family Court of Australia at Parramatta. The matter was scheduled for mention on 11 June 2020 at 12:30pm, with directions for the parties and the Independent Children's Lawyer to participate via a specified telephone conference facility.

Orders

Orders of the court

These proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with the matter to be mentioned on 11 June 2020 at 12:30pm.

The parties and ICL are required to dial in on the following number 1800 132 423, and at the prompt enter the guest passcode ... for the above mention.

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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