ABOOD & KHOURI - [2010] FMCAfam 900

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABOOD & KHOURI

[2010] FMCAfam 900

FAMILY LAW – Parenting – three young children of the marriage have not spent any time with the husband for four years and currently refusing to spend any time with him including supervised time – wife makes serious allegations of domestic violence – unacceptable risk not found to the Briginshaw standard – husband alleges wife has alienated children from him – orders made for intensive therapeutic intervention.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

M and M (1998) FLC 91-979
Goode & Goode (2006) FLC 93-286
Bookhurst & Bookhurst [2010] FamCAFC 26
Moszkowski & Moskowszki [2009] FamCAFC 118

Applicant:

MR ABOOD

Respondent:

MS KHOURI

File Number:

MLC 5537 of 2009

Judgment of:

Bender FM

Hearing dates:

12, 13 & 19 August 2010

Date of Last Submission:

19 August 2010

Delivered at:

Melbourne

Delivered on:

9 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr Marchetti

Solicitors for the Applicant:

Lampe Family Lawyers

Counsel for the Respondent:

Ms Sleeth

Solicitors for the Respondent:

Pelham Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Eidelson

Solicitors for the Independent Children’s Lawyer:

David Stagg Tonkin & Co

ORDERS

Until further order the wife have sole parental responsibility for the children [X] born [in] 2003 (“[X]”), [Y] born [in] 2004 (“[Y]”) and [Z] born [in] 2006 (“[Z]”).
Until further order [X], [Y] and [Z] live with the wife.
The parties, [X], [Y] and [Z] shall:
(a)forthwith attend upon Centrecare Counselling Agency (“Centrecare”) or Centrecare’s nominee for the purpose of the family receiving intensive therapeutic intervention so as to attempt to re-establish a positive relationship between [X], [Y] and [Z] and their father; and
(b)continue to attend Centrecare or Centrecare’s nominee at such times and for such regularity as recommended by the therapist conducting the counselling pursuant to order 3(a) herein (“the therapist”) and comply with any directions as to how the therapeutic sessions are to be conducted, including ensuring [X], [Y] and [Z] partake in such therapy individually or together with the husband.
For the purposes of the therapy referred to in order 3 herein, the Independent Children’s Lawyer shall forthwith provide to the

Co-Ordinator of Centrecare the following:
(a)a copy of these orders;
(b)a copy of the report of Dr O dated 1 December 2009; and
(c)a copy of the Reasons for Judgment delivered on 9 December 2010.
[X], [Y] and [Z] shall spend time with the father at the Children’s Contact Service [B] (“[B]”), upon the written recommendation of the therapist provided to the parties and the Independent Children’s Lawyer, for up to two hours each fortnight at times nominated by the Manager of the Contact Service with such supervised time to continue for a period of not less than five months.
For the purposes of order 5 herein, both parties shall do all things necessary to forthwith complete all application and intake processes required by [B] to enable supervised time between the husband and [X], [Y] and [Z] to…

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 ABOOD & KHOURI

Details

AGLC: ABOOD & KHOURI [2010] FMCAfam 900
Case: [2010] FMCAfam 900
Decision Date: 9 December 2010

CaseChat Overview and Summary

The matter in Abood & Khouri was heard in the Federal Circuit Court of Australia, where the primary dispute between the parties centred around the care and custody of their three children. The wife sought sole parental responsibility for the children, while the husband contested this, arguing for a shared arrangement. The court had to navigate complex family dynamics, considering the welfare and best interests of the children.

The court was required to determine several key legal issues. Primarily, it had to decide on the allocation of parental responsibility and the living arrangements for the children. The court also had to consider the recommendations of various experts, including a psychologist, and the views of the Independent Children’s Lawyer. Another significant issue was whether supervised contact between the children and their father should be permitted and, if so, under what conditions.

The court deliberated extensively on the evidence presented, including the expert reports and the children’s wishes. It concluded that the wife should have sole parental responsibility for the children and that they should live with her. However, the court recognised the importance of maintaining a relationship between the children and their father. Therefore, it ordered intensive therapeutic intervention to re-establish a positive relationship between the children and their father. Additionally, the court permitted supervised contact at a Children’s Contact Service, starting with limited hours and gradually increasing as deemed appropriate by the therapist. The court also stipulated that the matter would be re-evaluated after four months of supervised contact.

The orders of the court included provisions for ongoing therapeutic intervention, supervised contact, and the requirement for both parents to complete necessary processes to facilitate these arrangements. The court maintained that the matter was not finalised and that the Independent Children’s Lawyer would continue to monitor progress. The case was to be re-listed for further direction if either party failed to comply with the orders or after the supervised contact period had elapsed.

Orders

Orders of the court

Until further order the wife have sole parental responsibility for the children [X] born [in] 2003 (“[X]”), [Y] born [in] 2004 (“[Y]”) and [Z] born [in] 2006 (“[Z]”).

Until further order [X], [Y] and [Z] live with the wife.

The parties, [X], [Y] and [Z] shall:

(a) forthwith attend upon Centrecare Counselling Agency (“Centrecare”) or Centrecare’s nominee for the purpose of the family receiving intensive therapeutic intervention so as to attempt to re-establish a positive relationship between [X], [Y] and [Z] and their father; and

(b) continue to attend Centrecare or Centrecare’s nominee at such times and for such regularity as recommended by the therapist conducting the counselling pursuant to order 3(a) herein (“the therapist”) and comply with any directions as to how the therapeutic sessions are to be conducted, including ensuring [X], [Y] and [Z] partake in such therapy individually or together with the husband.

For the purposes of the therapy referred to in order 3 herein, the Independent Children’s Lawyer shall forthwith provide to the

Co-Ordinator of Centrecare the following:

(a) a copy of these orders;

(b) a copy of the report of Dr O dated 1 December 2009; and

[X], [Y] and [Z] shall spend time with the father at the Children’s Contact Service [B] (“[B]”), upon the written recommendation of the therapist provided to the parties and the Independent Children’s Lawyer, for up to two hours each fortnight at times nominated by the Manager of the Contact Service with such supervised time to continue for a period of not less than five months.

For the purposes of order 5 herein, both parties shall do all things necessary to forthwith complete all application and intake processes required by [B] to enable supervised time between the husband and [X], [Y] and [Z] to commence as soon as practicable after the written recommendation of the therapist for such supervised time is received by the parties and the Independent Children’s Lawyer.

In the event either party fails to comply with any of these orders or upon the completion of therapeutic counselling and/or when the husband and [X], [Y] and [Z] have had four months of supervised time at [B], the parties have liberty to apply to have the matter listed for mention before Federal Magistrate Bender for further direction as to ongoing hearing of the matter.

In the event the matter is re-listed for mention before Federal Magistrate Bender pursuant to order 7 herein on the basis that the husband and [X], [Y] and [Z] have had four months of supervised time at [B], the Independent Children’s Lawyer shall do all things necessary to ensure that a Report as to the progress of supervised time is obtained from [B] prior to the listing of the matter.

Whilst the matter shall be removed from the list of cases requiring determination while therapeutic counselling and supervised time is being undertaken, the matter has not finalised and the order for the appointment of the Independent Children’s Lawyer remains in full force and effect.

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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