ZAHUR & BOYLE - [2018] FamCA 285

FAMILY COURT OF AUSTRALIA

ZAHUR & BOYLE

[2018] FamCA 285

FAMILY LAW – PROCEDURAL – Where the father makes an application for an adjournment under s 57 Legal Aid Commission Act 1979 – Where there are special circumstances in this case which prevent the court from granting the father’s application for adjournment – Where the application for an adjournment is dismissed.

FAMILY LAW – PROCEDURAL – Where the father makes an application for a stay of final parenting orders that allow the children to temporarily relocate outside Australia – Where the father has failed to comply with an order to file a Notice of Appeal and an application for expedition of that appeal – Where the application for a stay is dismissed.

FAMILY LAW – PARENTING – Where the mother has an order for sole parental responsibility – Where the mother and the Independent Children's Lawyer seek consequential orders in respect of Country I passports for the children – Where the orders sought by the mother and the Independent Children's Lawyer are in the children’s best interests.

FAMILY LAW – PARENTING – Where the mother and the Independent Children's Lawyer seek an order changing a provision in the final orders to defer the timing of the children’s first block period back in Australia with their father – Where the mother did not leave Australia immediately because of notification relating to her becoming an Australian citizen – Where that constitutes a significant change in circumstances – Where it is otherwise in the best interests of the children to vary the order as sought.

Family Law Act 1975(Cth)
Legal Aid Commission Act 1979
Family Law Rules

Rowell & Keogh [2011] FamCAFC 74

APPLICANT:

Mr Zahur

RESPONDENT:

Ms Boyle

INDEPENDENT CHILDREN’S LAWYER:

Ms Lloyd

FILE NUMBER:

CAC

429

2014

DATE DELIVERED:

3 May 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

30 April 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jeanine Lloyd & Associates

Orders

(orders made 30.4.18)

Leave granted to the father to make an oral application for an adjournment of proceedings today on the basis that he relies on s 57 Legal Aid Commission Act 1979. I find that there are special circumstances that prevent me from giving that adjournment application. I reserve my reasons for that decision.
The father’s application filed 4 April 2018 for a stay of the orders made 29 March 2018 be dismissed.
The father sign all documents and do all things to enable B born … 2005 and C born … 2006 (“the children”) to obtain Country I passports and within 24 hours of him receiving any papers from the mother , for that purpose, he is to complete and sign those papers or documents and return them to the mother by delivering them to Suburb T Police Station for collection by the mother.
In the event the father refuses or neglects to sign…

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.

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Details

AGLC: ZAHUR & BOYLE [2018] FamCA 285
Case: [2018] FamCA 285
Decision Date: 3 May 2018

CaseChat Overview and Summary

In the matter of *Zahur & Boyle*, the father applied for an adjournment of proceedings and a stay of final parenting orders. The proceedings concerned parenting arrangements for the parties' children, including a temporary relocation outside Australia. The mother and the Independent Children's Lawyer sought consequential orders regarding passports for the children and a variation of the final orders concerning the timing of the children's return to Australia.

The court was required to determine whether to grant the father's application for an adjournment, considering the provisions of section 57 of the *Legal Aid Commission Act 1979* and any special circumstances. It also had to consider the father's application for a stay of final parenting orders, particularly in light of his failure to comply with a prior order to file a Notice of Appeal and an application for expedition. Furthermore, the court needed to decide on the mother's and the Independent Children's Lawyer's applications for orders relating to the children's passports and for a variation of the final orders regarding the children's return to Australia.

Justice Watts dismissed the father's application for an adjournment, finding that special circumstances prevented its grant. The application for a stay of final parenting orders was also dismissed, with the court noting the father's non-compliance with a previous order. The court found that the orders sought by the mother and the Independent Children's Lawyer regarding the children's passports were in the children's best interests. Additionally, the court varied the final orders to defer the timing of the children's first block period back in Australia with the father, finding that the mother's delayed departure from Australia due to her citizenship notification constituted a significant change in circumstances and that the variation was otherwise in the children's best interests.

The court ordered that the father sign all necessary documents for the children to obtain Country I passports within 24 hours of receipt, with the Registrar appointed to execute such documents on his behalf in the event of his refusal or neglect. The court also varied the final orders by changing the year for the children's return to Australia from 2018 to 2019.

Orders

Orders of the court

(orders made 30.4.18)

Leave granted to the father to make an oral application for an adjournment of proceedings today on the basis that he relies on s 57 Legal Aid Commission Act 1979. I find that there are special circumstances that prevent me from giving that adjournment application. I reserve my reasons for that decision.

The father’s application filed 4 April 2018 for a stay of the orders made 29 March 2018 be dismissed.

The father sign all documents and do all things to enable B born … 2005 and C born … 2006 (“the children”) to obtain Country I passports and within 24 hours of him receiving any papers from the mother , for that purpose, he is to complete and sign those papers or documents and return them to the mother by delivering them to Suburb T Police Station for collection by the mother.

In the event the father refuses or neglects to sign any documents necessary to effect the terms of Order 3, the Registrar of the Canberra Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of the father.

Order 8.1 made 29 March 2018 have deleted from it “2018” and have inserted “2019”.

I reserve my reasons for making these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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