ABDUL & FARAH - [2021] FCCA 170

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABDUL & FARAH

[2021] FCCA 170

Catchwords:
FAMILY LAW – Parenting – time children spend with father – best interest of children – allegations of family violence – risk of harm – mother to have sole parental responsibility – father to spend limited time with children – change of name.

Legislation:

Family Law Act 1975 (Cth) ss.60CA, 60CC, 60CG, 61DA, 65DAA

Cases Cited:

Chapman & Palmer [1978] FamCA 86

Jepson & Fleming [2018] FCCA 400

Marsden & Winch (No.3) [2007] FamCA 1364

Mayes & Denning [2017] FCCA 1754

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GR [2010] HCA 4

Salah & Salah [2016] FamCAFC 100

Sander & Hearn [2012] FMCAfam 812

Slater & Light [2011] FamCAFC 1

Applicant:

MR ABDUL

Respondent:

MS FARAH

File Number:

PAC 83 of 2012

Judgment of:

Judge Obradovic

Hearing dates:

17 – 19 August 2020 and 27 October 2020

Delivered at:

Parramatta

Delivered on:

5 February 2021

REPRESENTATION

Counsel for the Applicant:

Ms Murphy

Solicitors for the Applicant:

Swifte Law

Counsel for the Respondent:

Ms Katie

Solicitors for the Respondent:

Peter Jurd Lawyer

Counsel for the Independent Children's Lawyer:

Mr Braine

Solicitors for the Independent Children's Lawyer:

Ark Law Lawyers

ORDERS

The children X born in 2009 and Y born in 2011 shall be henceforth known as X Farah and Y Farah respectively.
The mother, Ms Farah, is authorised to apply to the Registrar of Births Deaths and Marriages that the children registered as X born in 2009 and Y born in 2011 be now registered as X Farah and Y Farah respectively.
Pursuant s.28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the children’s names in the form specified in order (2) herein.
The Court directs that the applicant forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.
The mother shall have sole parental responsibility for the children, X Farah (previously known as X) born in 2009 and Y Farah (previously known as Y) born 2011.
The children shall live with the mother.
The children shall spend time with the father during the school term only as follows:
(a)For a period of six months, on the first Saturday of each month for 3 hours from 9am to 12 noon;
(b)Thereafter and for a further period of six months, on the first Saturday of each month for 5 hours from 9am to 2pm;
(c)Thereafter, on the first Saturday of each month from 9am to 5pm; and
(d)At all other times as agreed to between the parents in writing.
Changeover shall occur at Hungry Jack’s Suburb B or such other place as nominated by the mother no later than 7 days prior to the time occurring in accordance with order (7) above.
The father shall forthwith provide to the mother’s solicitor a mobile telephone number for the father, where he may be contacted in case of an emergency and for any other…

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 ABDUL & FARAH

Details

AGLC: ABDUL & FARAH [2021] FCCA 170
Case: [2021] FCCA 170
Decision Date: 5 February 2021

CaseChat Overview and Summary

In the matter of ABDUL & FARAH, Judge Obradovic of the Family Court of Australia considered parenting arrangements for two children, X (born 2009) and Y (born 2011). The dispute involved allegations of family violence and the risk of harm to the children, leading to a determination regarding the children's time with their father and a change of their surname.

The court was required to determine the best interests of the children, specifically in relation to the level of parental responsibility to be afforded to each parent, the living arrangements for the children, the extent of time the children would spend with the father, and whether to permit a change of the children's surname from Abdul to Farah. The court also had to consider the implications of family violence allegations on these arrangements and the need for protective orders.

Applying the principles of the *Family Law Act 1975* (Cth), particularly concerning the best interests of the child, the court found it necessary to grant the mother sole parental responsibility and order that the children live with her. The court also ordered a phased increase in the father's time with the children over a twelve-month period, commencing with limited supervised contact, and imposed significant injunctions restraining the father from communicating with the mother and children, attending at their residences or schools, and denigrating the mother. Furthermore, the court ordered that the children's surname be changed to Farah, authorising the mother to register this change and directing that she be the sole person with parental responsibility for passport applications.

Orders

Orders of the court

The children X born in 2009 and Y born in 2011 shall be henceforth known as X Farah and Y Farah respectively.

The mother, Ms Farah, is authorised to apply to the Registrar of Births Deaths and Marriages that the children registered as X born in 2009 and Y born in 2011 be now registered as X Farah and Y Farah respectively.

Pursuant s.28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the children’s names in the form specified in order (2) herein.

The Court directs that the applicant forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.

The mother shall have sole parental responsibility for the children, X Farah (previously known as X) born in 2009 and Y Farah (previously known as Y) born 2011.

The children shall live with the mother.

The children shall spend time with the father during the school term only as follows:

(a) For a period of six months, on the first Saturday of each month for 3 hours from 9am to 12 noon;

(b) Thereafter and for a further period of six months, on the first Saturday of each month for 5 hours from 9am to 2pm;

(d) At all other times as agreed to between the parents in writing.

Changeover shall occur at Hungry Jack’s Suburb B or such other place as nominated by the mother no later than 7 days prior to the time occurring in accordance with order (7) above.

The father shall forthwith provide to the mother’s solicitor a mobile telephone number for the father, where he may be contacted in case of an emergency and for any other communication pursuant to these orders.

10.

The mother shall within 7 days of being provided with a mobile telephone number for the father pursuant to order (9) above, provide to the father directly a mobile telephone number where she may be contacted in case of an emergency and for any other communication pursuant to these orders.

11.

In the event that either child suffers from serious illness or is hospitalised, the parent who is caring for her shall notify the other parent as soon as reasonably practicable of the nature of the illness or injury and the name and contact details of the health facility or health practitioner who is treating the child.

12.

The mother shall, as soon as reasonably practicable, provide to the father copies of each of the children’s school reports as they become available, such documents to have the name of the school redacted.

13.

Except as otherwise provided for in these orders, the father is restrained by injunction from:

(a) Communicating or attempting to communicate with the mother;

(b) Communicating or attempting to communicate with the children;

(d) Attending within 100m of any place where the children may from time to time reside;

(e) Attending at any school the children may be enrolled in from time to time;

(f) Denigrating the mother within the hearing or in the presence of the children; and

(g) Permitting or encouraging any other member of his extended family from doing any of the matters referred to in sub-paragraphs (a)-(f) above.

14.

X Farah, previously known as X, born in 2009 and Y Farah, previously known as Y, born in 2011 are permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to X Farah, born in 2009 and Y Farah, born in 2011. The mother shall be the only person with ‘parental responsibility’ for the children X Farah born in 2009 and Y Farah born in 2011 for the purposes of applying for, and being issued with, an Australian passport for X Farah, born in 2009 and Y Farah, born in 2011.

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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