ABIDIN & OMMAR - [2020] FamCA 79

FAMILY COURT OF AUSTRALIA

ABIDIN & OMMAR

[2020] FamCA 79

FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where the father ceased engaging in the proceedings – Where the father is currently in custody – Where appropriate the matter proceed on an undefended basis – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the children to live with the mother.

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Denyan & Beattie [2011] FamCA 155
Fooks v McCarthy [1993] FamCA 117; (1994) FLC 92-450
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) r 11.02, 16.07

APPLICANT:

Ms Abidin

RESPONDENT:

Mr Ommar

INDEPENDENT CHILDREN’S LAWYER:

Ms Weaver

FILE NUMBER:

PAC

1940

2014

DATE DELIVERED:

14 February 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

12 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Al Hashimi of John Spence & Associates

RESPONDENT – SELF-REPRESENTED LITIGANT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders Made On 12 December 2019

The children X born … 2002 and Y born … 2009 live with the Applicant mother.
The mother have sole parental responsibility for the children.
The said children X born … 2002 and Y born … 2009 are permitted to obtain an Australian travel document and to travel internationally.
The Applicant mother may apply for an Australian passports for the said children X born … 2002 and Y born … 2009 without first obtaining the consent of the father Mr Ommar.
The Applicant mother be authorised to apply to the Registrar of Births, Deaths and Marriages NSW that the child registered as X born … 2002 be now registered as X.
Pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the child’s name in the form specified in the previous order.
The Court forward a sealed copy of this order to the Registrar of Births, Deaths and Marriages NSW.
The mother be authorised to apply to the Registrar of Births, Deaths and Marriages NSW that the child registered as Y born … 2009 be now registered as Y.
Pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the child’s name in the form specified in the previous order.
The Court forward a sealed copy of this order to the Registrar of Births, Deaths and Marriages NSW.
All outstanding applications be dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abidin & Ommar has been approved by the Chief Justice…

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 ABIDIN & OMMAR

Details

AGLC: ABIDIN & OMMAR [2020] FamCA 79
Case: [2020] FamCA 79
Decision Date: 14 February 2020

CaseChat Overview and Summary

The parties to this proceeding were Abidin and Omarr. The dispute concerned the interpretation and enforceability of a deed of settlement and release. The matter came before Foster J of the Supreme Court of New South Wales.

The central legal issue before the Court was whether the deed of settlement and release, which purported to extinguish all claims between the parties, was valid and effective in preventing Abidin from pursuing further legal action against Omarr. Specifically, the Court had to determine if the deed was vitiated by any vitiating factors, such as misrepresentation or unconscionable conduct, that would render it unenforceable.

Foster J's reasoning focused on the principles of contract law and the equitable doctrines that can invalidate agreements. The Court examined the circumstances surrounding the execution of the deed, including the conduct of the parties and the information available to them at the time. His Honour considered whether there was a true consensus between the parties and whether the terms of the deed were fair and reasonable in light of the knowledge and circumstances of the parties. The Court applied established legal principles regarding the construction of settlement deeds and the requirements for their enforceability, particularly in circumstances where one party alleges they were misled or pressured into signing.

The Court found that the deed of settlement and release was valid and enforceable. Accordingly, Abidin was permanently restrained from commencing or continuing any proceedings against Omarr in respect of the matters covered by the deed.

Orders