Father gets primary custody, due to mother's new partner's DV and alcoholism, court accepts unchallenged evidence and change of school.

FLAST CASE SUMMARY  

Case : Bangi & Belov [2019] FamCA 42 (6 February 2019)

- Time With

This case involved one child, 13 years of age, where the matter was remitted by the Full Court for to the Family Court for consideration of a discrete issue.

The dispute relates to the proportion of time the child will spend with each parent during school terms, the dispute arose because the police have attended the mother’s residence on multiple occasions due to reported and conflict between the mother and her [new] partner.

The father seeks more time in the father’s household and less time in the mother’s household to reduce the child’s risk of exposure to violence, conflict and alcohol abuse. The father sought orders whereby the child live with the mother on alternate weekends and for one night in each intervening week during school term and otherwise with him.

Parental Responsibility

Additionally there was a dispute as to which school the child attends and an order is made specifying which school the child will attend.

Practice and  
Where the father seeks to rely on findings made by an earlier Court in the same proceedings, the Courts consideration of case law and s 69ZX of the Family Law Act 1975 (Cth). Where the Court is able, but not required, to adopt unchallenged findings made by the trial judge in earlier proceedings.

Issue : Although in her written submissions the mother objected to all of the affidavits in the father’s case, the only objection she pressed at the commencement of the hearing was in respect of the affidavit of Mr JJ. The father’s counsel said that the deponent would not be available for cross-examination. In the normal course, an affidavit would be excluded where the deponent is not made available for cross-examination, without a justifying circumstance.

Reasoning: However, as with other aspects of the proceedings, the affidavit in question was part of the evidence before Hannam J in the earlier hearing. The evidence of Mr JJ was not challenged in those earlier proceedings. That is because the mother failed to attend the parts of the hearing which occurred after that affidavit was sworn and filed. However, there was no appeal by the mother in relation to the orders of Hannam J and although she attended a procedural hearing (about expedition) she failed to attend at the hearing of the father’s appeal. As a result there was no challenge on appeal to the findings of Hannam J in respect of Mr JJ’s evidence.

HELD : 

Where orders are made that the child lives with the father and spends substantial and significant time with the mother.

Additionally in regards to schooling : I have ordered that he mainly live with his father. Largely for that reason I ordered that the child attend the public School (as opposed to private school mother wanted) nearest the father, commencing in the 2019 school year.


If you have not already, click here to create an account on FLAST to receive notifications of Case Studies, have access to our Discussion and QNA areas and much more.   JOIN NOW.
Comments (0)
Info
Category:
Created:
Updated:
SSL Certificates