ABDOO & ESSEY - [2011] FMCAfam 772

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABDOO & ESSEY

[2011] FMCAfam 772

FAMILY LAW – Application seeking to travel outside of Australia with child to Lebanon– previous consent orders placing child on the airport watch list – travel advice warnings against travel to Lebanon – question of serious predictable risk of physical or psychological harm to child should travel occur.

Family Law Act 1975, ss.65Y, 60B, 65DAA, 106A, 60CC, 69ZT, 60CA
Evidence Act 1995
Federal Magistrates Court Rules 2001
Family Law Rules 2004
Australian Passports Act 2005
International Convention on the Rights of the Child
International Convention on Civil and Political Rights

Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCAFC 101
Dylan & Dylan [2007] FamCA 842
Pitken & Hendry [2008] FamCA 186
Mabo & Queensland [1992] HCA 23
Minister of Ethic Affairs v Teoh [1995] HCA 20
B & B & Minister for Immigration & Multicultural and Indigenous Affairs [2003] FamCA 621
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729

Applicant:

MS ABDOO

Respondent:

MR ESSEY

File Number:

PAC 6371 of 2007

Judgment of:

Harman FM

Hearing date:

18 July 2011

Date of Last Submission:

18 July 2011

Delivered at:

Parramatta

Delivered on:

18 July 2011

ORDERS

For all of those reasons, I am satisfied the following orders are appropriate:

Pending further order and until 25 August 2011, the orders of the Local Court [omitted] made 13 June 2008 are suspended.
Pending further order and until 25 August 2011, Ms Abdoo shall have sole parental responsibility for [X], born [in] 2002.
I note that the above order for sole parental responsibility has the effect that Ms Abdoo is the only person required to sign any application for the issue of an Australian passport, visa or Australian travel document for [X].
Pending further order and until 25 August 2011, [X] shall live with

Ms Abdoo.
Pending further order and until 25 August 2011, [X] shall communicate with his father between 6 and 7 pm Sydney time each Tuesday, Thursday and Saturday, and with respect to the same:
(a)Mr Essey shall ensure that he has, prior to 21 July 2011, provided to Ms Abdoo the telephone number upon which he wishes to receive calls from [X];
(b)Ms Abdoo shall instigate [X]’s telephone calls to his father or assist [X] in doing so;
(c)During such calls, [X] shall be entitled to speak with his father with privacy and without interruption or distraction.
Pursuant to s.65Y of the Family Law Act 1975 Ms Abdoo is hereby authorised to remove [X] from the Commonwealth of Australia for the period commencing 1 am, 21 July 2011 and concluding midnight,

25 August 2011.
As and from midnight, 25 August 2011, the orders made by the Local Court [omitted] as above shall resume operation.
For the above period, 21 July to 25 August 2011, [X]’s name and details shall be removed from the Federal Police Airport Watch List and so as to facilitate his travel in accordance with these orders.

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 ABDOO & ESSEY

Details

AGLC: ABDOO & ESSEY [2011] FMCAfam 772
Case: [2011] FMCAfam 772
Decision Date: 18 July 2011

CaseChat Overview and Summary

In the Family Court, the matter of Abdoo & Essey was heard, involving a dispute between Ms Abdoo and Mr Essey regarding the care and custody of their child, [X]. The dispute originated from orders made by the Local Court in 2008, which were now under review. Ms Abdoo sought to have sole parental responsibility for [X] and to allow [X] to travel outside Australia. Mr Essey contested these applications.

The legal issues before the court involved whether Ms Abdoo should be granted sole parental responsibility, the arrangements for [X]'s communication with his father, and the permission for [X] to travel outside Australia. The court had to balance the best interests of [X] with the respective rights and responsibilities of the parents as prescribed by the Family Law Act 1975. The court also had to consider the implications of [X]'s travel and the measures to ensure his safety and communication with his father.

The court concluded that the orders of the Local Court would be suspended, and Ms Abdoo would have sole parental responsibility for [X] until a specified date, during which [X] would live with Ms Abdoo. The court detailed specific communication arrangements between [X] and his father, including times, privacy, and logistics. The court granted Ms Abdoo the authority to remove [X] from Australia for a defined period, subject to certain conditions. The court also ordered that [X]'s details be removed from the Federal Police Airport Watch List and that his passport be lodged with the court upon return. The orders were set to resume on a specified date, with further directions to be given if Mr Essey filed any applications for existing parenting orders.

The court made specific orders for the suspension of previous Local Court orders, the granting of sole parental responsibility to Ms Abdoo, the communication schedule between [X] and his father, and the travel authorisation for [X]. The court also specified the removal of [X]'s details from the Federal Police Airport Watch List and the lodging of his passport with the court upon return. The matter was adjourned for further mention and directions.

Orders

Orders of the court

For all of those reasons, I am satisfied the following orders are appropriate:

Pending further order and until 25 August 2011, the orders of the Local Court [omitted] made 13 June 2008 are suspended.

Pending further order and until 25 August 2011, Ms Abdoo shall have sole parental responsibility for [X], born [in] 2002.

I note that the above order for sole parental responsibility has the effect that Ms Abdoo is the only person required to sign any application for the issue of an Australian passport, visa or Australian travel document for [X].

Pending further order and until 25 August 2011, [X] shall live with

Ms Abdoo.

Pending further order and until 25 August 2011, [X] shall communicate with his father between 6 and 7 pm Sydney time each Tuesday, Thursday and Saturday, and with respect to the same:

(a) Mr Essey shall ensure that he has, prior to 21 July 2011, provided to Ms Abdoo the telephone number upon which he wishes to receive calls from [X];

(b) Ms Abdoo shall instigate [X]’s telephone calls to his father or assist [X] in doing so;

(c) During such calls, [X] shall be entitled to speak with his father with privacy and without interruption or distraction.

Pursuant to s.65Y of the Family Law Act 1975 Ms Abdoo is hereby authorised to remove [X] from the Commonwealth of Australia for the period commencing 1 am, 21 July 2011 and concluding midnight,

25 August 2011.

As and from midnight, 25 August 2011, the orders made by the Local Court [omitted] as above shall resume operation.

For the above period, 21 July to 25 August 2011, [X]’s name and details shall be removed from the Federal Police Airport Watch List and so as to facilitate his travel in accordance with these orders.

Upon return to Australia with [X] and no later than close of business

30 August 2011, [X]’s passport shall be lodged by Ms Abdoo with the Registrar of this Court to be held by the Registrar pending further order.

10.

Otherwise adjourn the matter for mention and directions before me 11.30 am, 30 August 2011.

11.

In the event that Mr Essey proposes to or files any application for existing parenting orders during that period, then further directions for the conduct of that application will be made 30 August.

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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