AKBAR & AKBAR - [2017] FamCA 709

FAMILY COURT OF AUSTRALIA

AKBAR & AKBAR

[2017] FamCA 709

FAMILY LAW – CHILDREN – Best interests considerations – Where there are significant and serious allegations of family violence – Where the father denies the mother’s allegations as to family violence – Where objective evidence clearly supports the mother’s contentions as to family violence – Where the mother’s evidence is to be preferred over the father’s – Where the father does not acknowledge the mother’s anxiety or fear around him – Where the father did not see the child for two years post separation – Where the father has had only limited supervised time with the child during the proceedings – Where supervised time between the father and child ceased over 12 months ago – Where the mother would experience significant anxiety if the child were to spend time with the father – Where the child spending time with the father would likely lead to conflict and have a detrimental effect on the child’s psychological wellbeing – Where the Independent Children’s Lawyer proposes the child spend identification time with the father only or only communicate via gifts and cards – Where it is in the best interests of the child to spend no time with the father.

FAMILY LAW – COSTS – Application for costs order by Independent Children’s Lawyer – Discussion of general principles – Where mother in receipt of legal aid – Where father in employment – Where no submission by father as to hardship – Where order made for father to pay one half of Independent Children’s Lawyer’s costs.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 117

De Roma & De Roma [2013] FamCA 566
Gahen & Gahen (No 2) [2013] FamCA 936
Goode and Goode [2006] FamCA 1346
Mazorski v Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

Stott & Holgar and Anor [2017] FamCAFC 152

APPLICANT:

Mr Akbar

RESPONDENT:

Ms Akbar

INDEPENDENT CHILDREN’S LAWYER:

Mr Samuel

FILE NUMBER:

PAC

5797

2014

DATE DELIVERED:

14 September 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

30 and 31 March 2017, 3 and 4 April 2017 and 10 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Radojev with Ms Smith on 30 and 31 March 2017 and 3 and 4 April 2017 and Ms Smith on 10 July 2017

SOLICITOR FOR THE APPLICANT:

Griffiths Family Law

COUNSEL FOR THE RESPONDENT:

Ms De Vere

SOLICITOR FOR THE RESPONDENT:

Jacqueline Kyle Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Jackson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

That the mother Ms Akbar have sole parental responsibility for the child B born 21 March 2012.
That the child live with the mother.
That subject to the order below there be, otherwise, no time or communication between the child and the father.
That the father is permitted to provide to the child every year birthday cards and/or birthday…

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.

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Details

AGLC: AKBAR & AKBAR [2017] FamCA 709
Case: [2017] FamCA 709
Decision Date: 14 September 2017

CaseChat Overview and Summary

In the matter of *AKBAR & AKBAR*, Foster J of the Family Court of Australia considered a dispute between the parents, Ms Akbar (the mother) and Mr Akbar (the father), concerning the best interests of their child, B. The central conflict revolved around allegations of family violence made by the mother, which the father denied. The court was required to determine the appropriate parenting arrangements for B, specifically whether any time or communication should occur between B and the father, and to consider an application for costs made by the Independent Children’s Lawyer (ICL).

The legal issues before the court included the paramount consideration of B's best interests, particularly in light of significant and serious allegations of family violence. The court had to assess the credibility of the parties' evidence regarding family violence, determine the impact of such violence on B's wellbeing, and consider the ICL's proposal for limited contact. Furthermore, the court was tasked with determining whether the father should contribute to the ICL's costs, taking into account the parties' financial circumstances and the general principles governing costs orders in family law proceedings.

Foster J found that objective evidence strongly supported the mother's contentions of family violence, leading the court to prefer her evidence over the father's. The father's failure to acknowledge the mother's anxiety or fear, coupled with a significant period of no contact and limited supervised time with B, weighed heavily in the court's assessment. The court concluded that any time or communication between B and the father would likely cause the mother significant anxiety and have a detrimental effect on B's psychological wellbeing, leading to conflict. Consequently, the court ordered that B live with the mother and have sole parental responsibility. No time or communication was to occur between B and the father, save for the father being permitted to send birthday cards and presents annually via a postal address provided by the mother. The court also ordered the father to pay one half of the ICL's costs, totalling $10,140.00, to Legal Aid NSW within three months.

Orders

Orders of the court

That the mother Ms Akbar have sole parental responsibility for the child B born 21 March 2012.

That the child live with the mother.

That subject to the order below there be, otherwise, no time or communication between the child and the father.

That the father is permitted to provide to the child every year birthday cards and/or birthday presents to be provided to a postal office box or other means of a postal address belonging to the mother.

That by way of injunction the mother is hereby restrained from causing, allowing or permitting the child to attend upon Dr C, psychologist.

That, otherwise, all applications be dismissed.

Independent Children’s Lawyer’s Costs

That the Applicant father pay by way of contribution of the Independent Children’s Lawyer’s costs the sum of $10,140.00 to Legal Aid NSW within three month from this date.

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

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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