Turan and Turan - [2009] FMCAfam 72

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TURAN & TURAN

[2009] FMCAfam 72

FAMILY LAW – Dispute over children – parents being in different States – children living with mother – entrenched attitudes of parties and children – outstanding property dispute.

Family Law Act 1975, ss.60B, 60B(1), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(l), 61DA

Goode v Goode [2006] FamCA 1346
Price v Underwood [2008] FamCAFC 46

Applicant:

MR TURAN

Respondent:

MS TURAN

File Number:

MLC 12926 of 2007

Judgment of:

Burchardt FM

Hearing dates:

17 & 18 December 2008

Date of Last Submission:

18 December 2008

Delivered at:

Melbourne (by Video Link to Hobart)

Delivered on:

10 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr A. Robinson

Solicitors for the Applicant:

Zindilis Barristers & Solicitors

Counsel for the Respondent:

Ms K. Mussared

Solicitors for the Respondent:

Legal Aid Commission of Tasmania

Counsel for the Independent Children’s Lawyer:

Ms F. Di Giovanni

Solicitors for the Independent Children’s Lawyer:

Wallace Wilkinson & Webster

THE COURT ORDERS THAT:

The Respondent mother MS TURAN (“the mother”) have sole parental responsibility for making decisions about major long term issues relating to the children [X] born in 1994 and [Y] born in 1994 (“the children”).
The children live with the mother.
The mother shall keep the Applicant father MR TURAN (“the father”) informed of any changes to the children’s contact details and school.
The father shall keep the Respondent mother informed of his contact details.
The father write to the children to advise them of any changes to his contact details so they can contact him in future if they choose to do so.
In the event that the children (or either one of them) express the wish to spend time with the father both parties shall do all necessary acts and things to facilitate the children (or child as the case may be) spending time with the father.
Whilst the children attend high school, the children consult with the school counsellor on at least one occasion per school term and a copy of this Order be released to the school attended by the children.
The Order appointing the Independent Children’s Lawyer dated 4 June 2008 be discharged.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT DIRECTS THAT:

Within 14 days the parties forward in writing to one another and to the Court their submissions in relation to the constitution of this Court in relation to property issues.

IT IS NOTED that publication of this judgment under the pseudonym Turan & Turan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 12926 of 2007

MR TURAN

Applicant

And

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 Turan and Turan

Details

AGLC: Turan and Turan [2009] FMCAfam 72
Case: [2009] FMCAfam 72
Decision Date: 10 February 2009

CaseChat Overview and Summary

The case of Turan and Turan involved a dispute between the parents of two children, [X] and [Y], born in 1994. The father, MR TURAN, sought to challenge the existing arrangements for parental responsibility and contact with the children. The mother, MS TURAN, was awarded sole parental responsibility for making decisions about major long-term issues relating to the children. The children were to live with the mother, and the father was required to be kept informed of any changes to the children's contact details and school. The father was also required to keep the mother informed of his contact details and to write to the children to inform them of any changes to his contact details.

The legal issues before the court were primarily concerned with the allocation of parental responsibility and the arrangements for contact between the father and the children. The court considered the best interests of the children as the paramount consideration in making its decision. The court also considered the views of the Independent Children's Lawyer, who had been appointed to represent the interests of the children in the proceedings.

The court found that sole parental responsibility should remain with the mother, but that both parents should facilitate contact between the children and the father if the children expressed a wish to spend time with him. The court also ordered that the children consult with the school counsellor on at least one occasion per school term while attending high school. The court discharged the Order appointing the Independent Children's Lawyer, as it was no longer necessary. The court directed the parties to submit their views on the constitution of the Court in relation to property issues within 14 days. The court's orders aimed to balance the rights and responsibilities of both parents while prioritising the best interests of the children.

Orders

Orders of the court

The Respondent mother MS TURAN (“the mother”) have sole parental responsibility for making decisions about major long term issues relating to the children [X] born in 1994 and [Y] born in 1994 (“the children”).

The children live with the mother.

The mother shall keep the Applicant father MR TURAN (“the father”) informed of any changes to the children’s contact details and school.

The father shall keep the Respondent mother informed of his contact details.

The father write to the children to advise them of any changes to his contact details so they can contact him in future if they choose to do so.

In the event that the children (or either one of them) express the wish to spend time with the father both parties shall do all necessary acts and things to facilitate the children (or child as the case may be) spending time with the father.

Whilst the children attend high school, the children consult with the school counsellor on at least one occasion per school term and a copy of this Order be released to the school attended by the children.

The Order appointing the Independent Children’s Lawyer dated 4 June 2008 be discharged.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT DIRECTS THAT:

10.

Within 14 days the parties forward in writing to one another and to the Court their submissions in relation to the constitution of this Court in relation to property issues.

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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