FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wahba & Noori [2023] FedCFamC2F 1285
File number(s): MLC 11901 of 2018 Judgment of: JUDGE O'SHANNESSY Date of judgment: 6 October 2023 Catchwords: FAMILY LAW – final parenting orders – special time arrangements – when parties should attend further dispute resolution – final property orders – whether any property adjustments should be made – contributions made by the parties during the relationship and post-separation – where one party had failed business ventures – where one party purchased a property at separation and has built equity – whether principled reason to alter property interests – whether just and equitable to alter property interests – application for property orders dismissed. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 75, 79, 80
Cases cited: Adamson & Adamson (2014) FLC 93-622
Browne v Green (1999) FLC92-873
Clauson & Clauson (1995) FLC 92-595
Fox v Percy (2003) 214 CLR 118
Paxton & Paxton [2016] FCCA 1689
Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518
Division: Division 2 Family Law Number of paragraphs: 167 Date of hearing: 28 - 29 October 2021 Place: Melbourne Counsel for the Applicant: Ms. D Wiener Solicitor for the Applicant: MMH Lawyers Counsel for the Respondent: Mr. C Arnold Solicitor for the Respondent: Lampe Family Lawyers ORDERS
MLC 11901 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WAHBA
Applicant
AND: MS NOORI
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
6 OCTOBER 2023
THE COURT ORDERS BY CONSENT THAT:
Parenting
1.All previous parenting orders be discharged.
2.The child X born in 2016 (‘the child’) live with the Mother, Ms Noori (‘the Mother’).
3.The Mother have sole parental responsibility for the said child.
4.The Father, Mr Wahba (‘the Father’), spend time and communicate with the child as follows:-
(a)Once a fortnight for up to two (2) hours during the day as supervised by the Family Contact Centre B Contact Centre at such times nominated by the Family Contact Centre, at the Father’s expense, if any;
(b)Each party do forthwith all things necessary to enrol in B Contact Centre contact centre in Suburb C and upon such enrolment, and upon the Father returning to Australia then time take place at such times as can be accommodated by B Contact Centre for the maximum period available;
(c)Thereafter unsupervised for a period of 2 hours each Sunday for 3 months;
(d)Thereafter unsupervised for a period of 3 hours each Sunday for 3 months;
(e)Thereafter 4 hours each Sunday; and
(f)As otherwise agreed between the parties.
AND THE COURT ORDERS THAT:
5.As soon as practical the parties attend FDRS or other mediation to discuss other and further time the Father spends with the child.
AND THE COURT ORDERS BY CONSENT THAT:
6.For the purposes of all time, changeover take place at B Contact Centre or other agreed public location.
7.Upon the cessation of supervised time, the Father spend time and communicate with…
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- Wahba & Noori [2023] FedCFamC2F 1285
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- [2023] FedCFamC2F 1285
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CaseChat Overview and Summary
The court first addressed the parenting orders, considering the best interests of the child as the paramount concern. It was decided that the child would live primarily with the mother, Ms Noori, with the father, Mr Wahba, having specified visitation rights. The visitation schedule started with supervised contact through the Family Contact Centre, gradually transitioning to unsupervised contact based on the child's age and the parents' ability to cooperate. The court also established guidelines for communication and special occasions, ensuring that both parents could celebrate significant events with the child. The court emphasised the importance of further dispute resolution to discuss additional time arrangements for the father.
Regarding the property settlement, the court examined the contributions made by both parties during the relationship and post-separation. The mother had purchased a property at the time of separation, during which the father had experienced business failures. The court found that there were no principled reasons to alter the property interests as originally determined, and any adjustment would not be just and equitable. Consequently, the father's application for a property settlement was dismissed, and the mother was declared to have sole interest in the property. The court also directed the father to remove any caveats over the property title within a specified timeframe.
The court's final orders included the discharge of previous parenting orders and the establishment of new arrangements for the child's residence, time spent with the father, and special occasions. Additionally, the father's application for property settlement was dismissed, and he was required to remove any caveats over the property title within 30 days. The court emphasised the importance of ongoing communication and cooperation between the parties for the benefit of their child.
Orders
Orders of the court
MLC 11901 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR WAHBA
Applicant
AND:
MS NOORI
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
6 OCTOBER 2023
THE COURT ORDERS BY CONSENT THAT:
Parenting
1. All previous parenting orders be discharged.
2. The child X born in 2016 (‘the child’) live with the Mother, Ms Noori (‘the Mother’).
3. The Mother have sole parental responsibility for the said child.
4. The Father, Mr Wahba (‘the Father’), spend time and communicate with the child as follows:-
(a) Once a fortnight for up to two (2) hours during the day as supervised by the Family Contact Centre B Contact Centre at such times nominated by the Family Contact Centre, at the Father’s expense, if any;
(b) Each party do forthwith all things necessary to enrol in B Contact Centre contact centre in Suburb C and upon such enrolment, and upon the Father returning to Australia then time take place at such times as can be accommodated by B Contact Centre for the maximum period available;
(c) Thereafter unsupervised for a period of 2 hours each Sunday for 3 months;
(d) Thereafter unsupervised for a period of 3 hours each Sunday for 3 months;
(e) Thereafter 4 hours each Sunday; and
(f) As otherwise agreed between the parties.
AND THE COURT ORDERS THAT:
5. As soon as practical the parties attend FDRS or other mediation to discuss other and further time the Father spends with the child.
AND THE COURT ORDERS BY CONSENT THAT:
6. For the purposes of all time, changeover take place at B Contact Centre or other agreed public location.
7. Upon the cessation of supervised time, the Father spend time and communicate with the child for special occasions as follows:
AND THE COURT ORDERS THAT:
(a) For 3 hours on the child’s birthday as agreed in writing by text message or email, and in default of agreement, from 11:00am until 2:00pm.
AND THE COURT ORDERS BY CONSENT THAT:
(b) For 4 hours on Father’s Day as agreed in writing by text message or email, and in default of agreement, from 10:00am until 2:00pm;
AND THE COURT ORDERS THAT:
(c) For 4 hours on Eid al-Fitr, and in default of agreement, on the day nominated by the Father in writing by text message or email (‘the nominated day’), on or before seven days prior to the day, and in default of agreement, from 10:00 AM until 2:00 PM on the nominated day.
AND THE COURT ORDERS BY CONSENT THAT:
(d) For 3 hours as agreed on the Father’s Birthday as agreed in writing by text message or email, and in default of agreement, from 11:00am until 2:00pm.
8. In the event the Father goes overseas for longer than 2 months, then the first 4 time spend visits after his return be supervised by an agreed supervisor, at the Father’s expense, if any.
9. The Mother keep the Father updated as to any serious injury affecting the child and advise him of the name of any medical practitioner or allied health practitioner the child attends upon from time to time and the Father be authorised to contact and the Father be authorised to contact and obtain information from such persons.
10. In relation to any other medical treatment the Mother will provide the Father with any written reports, letters and any other documents which are provided to the parent by the medical and/or health practitioner and the Father be authorised to contact and obtain information from such persons.
11. Any medication prescribed to the child is to be passed to the other parent at changeover.
12. The Father be at liberty to attend PTA meetings at a separate time from the Mother.
13. The Father be authorised to receive any school notices, photographs and like material, at his expense, if any.
14. Each parent shall ensure that they communicate via a parenting App which they use for matters relating to the child and futter that each advise the other and keep them informed of their residential addresses and forthwith advise the other of any change within 24 hours.
15. Each party their servants and agents be and are hereby restrained by injunction from denigrating, criticising or speaking disparagingly of the other within the hearing of the child or allowing any other person to do so.
16. 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 Annexure A and these particulars are included in these orders.
17. All extant parenting applications are otherwise dismissed.
AND THE COURT ORDERS THAT:
Property
18. The Father’s application for property settlement is dismissed.
19. It is declared that the Father, Mr Wahba, has no interest in the property known as D Street, Suburb E, (‘the Property’).
20. The Father do all acts and things to remove any caveat he has over the title of the Property within 30 days of these orders at his expense.
21. All extant property applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A. 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 Annexure A and these particulars are included in these orders.
B. In the event the Father fails to remove the caveat as provided in these Orders, the Court would consider an application for the Mother to be authorised to execute any necessary document in the name of the Father to cause the removal of the caveat.
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 Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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