Valotis & Simas - [2023] FedCFamC2F 112

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Valotis & Simas [2023] FedCFamC2F 112

File number(s): MLC 10854 of 2022

Judgment of: JUDGE HARLAND

Date of judgment: 9 February 2023

Catchwords: FAMILY LAW – parenting – application for summary dismissal – where respondents seek summary dismissal of an application by the maternal grandmother for parenting orders

Legislation:
Family Law Act 1975 (Cth) ss 65C, 143(2), 143(5)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Cases cited:
Aldridge & Keating (2009) FLC 93 – 142

Bonner & Chandler [2021] FedCFamC1A 81

Bowles & Anor & Post & Anor [2020] FCCA 3300

Church & Overton [2008] FamCA 965

Lindon v the Commonwealth of Australia (No.2) [1996] HCA 14

Souter & Meagher & Anor [2007] FamCA 18

SPS v PL [2008] FamCAFC 16

Division: Division 2 Family Law

Number of paragraphs: 43

Date of hearing: 27 January 2023

Place: Melbourne

Counsel for the Applicant: Mr Mellas

Solicitor for the Applicant: Doyles Family Law and Mediation

Counsel for the Respondents: Mr Arnold

Solicitor for the Respondents: Pearsons Lawyers Pty Ltd
ORDERS

MLC 10845 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS VALOTIS

Applicant

AND:
MS SIMAS

First Respondent

MR SIMAS

Second Respondent

order made by:

JUDGE HARLAND

DATE OF ORDER:

9 February 2023

THE COURT ORDERS THAT:
1.The application for summary dismissal is dismissed.
2.The proceeding is adjourned for further Compliance and Readiness Hearing on 6 April 2023 at 11:00am.
3.In accordance with the FCFCOA Central Practice Direction – Family Law Case Management, no less than 7 days prior to the listing, each party must file and serve:
(a)an Amended Application or Response as appropriate, setting out the precise orders sought, if the most recently filed Application or Response is not current;
(b)an undertaking as to disclosure in accordance with Rule 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
(c)a Certificate of Readiness in the approved form.

AND THE COURT NOTES THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of…

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 Valotis & Simas

Details

AGLC: Valotis & Simas [2023] FedCFamC2F 112
Case: [2023] FedCFamC2F 112
Decision Date

CaseChat Overview and Summary

The case of Valotis & Simas was heard in the Federal Circuit and Family Court of Australia. The maternal grandmother, Ms Valotis, sought to spend regular time with her granddaughter X, who is nearly three years old and lives with her parents, Ms and Mr Simas, who are in an intact relationship. The parents opposed the grandmother’s application, seeking summary dismissal. The legal issue before the Court was whether the grandmother had a reasonable prospect of success in her application for parenting orders. The Court considered the evidence presented by both parties and found that while the grandmother’s case was weak, particularly in regards to the frequency and amount of time sought, it could not conclude that she had no reasonable prospect of success. The Court dismissed the application for summary dismissal and ordered the matter to proceed to a trial to allow the evidence to be tested. The Court also noted the significant costs incurred by both parties and encouraged them to consider the negative impact of ongoing proceedings on all parties and the prospects of repairing their relationship.

Orders