AKBARI & AKBARI - [2019] FCCA 3752

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKBARI & AKBARI

[2019] FCCA 3752

Catchwords:
FAMILY LAW – Parenting – child resistant to spending time with father – family violence – allegations of parental alienation.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(2), 60CC(3), 61DA, 117(4)

Cases cited:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Applicant:

MR AKBARI

Respondent:

MS AKBARI

File Number:

MLC 10768 of 2010

Judgment of:

Judge Hughes

Hearing dates:

24, 25 and 26 September, 12 October 2018 and 30 November 2018

Date of Last Submission:

30 November 2018

Delivered at:

Canberra

Delivered on:

23 December 2019

REPRESENTATION

Counsel for the Applicant:

Ms Davis

Solicitors for the Applicant:

Lexicon Lawyers

Counsel for the Respondent:

Mr Miller

Solicitors for the Respondent:

Women's Legal Centre

Counsel for the Independent Children's Lawyer:

Ms Mistry

Solicitors for the Independent Children's Lawyer:

Legal Aid ACT

ORDERS

All previous parenting orders in relation to the child X, born in 2006, are discharged.
The mother shall have sole responsibility for the child.
The child shall live with her mother.
The child shall spend time with her father in accordance with her wishes.
The father may communicate with the child by telephone or Skype each Friday at 7.30pm or such other time as agreed between the child and her father, and the mother shall take all reasonable steps to facilitate such communication.
The mother shall forthwith obtain and maintain a mobile phone for use by the child in communicating with her father and shall provide the number of the mobile phone to the father within seven days.
The mother shall forthwith set up an email address for communication between the parties in relation to parenting matters only and shall provide the email address to the father within seven days.
The mother shall forthwith authorise and direct the principal of any school attended by X to provide to the father copies of all of her school reports.
Within 60 days the mother shall take all steps necessary to obtain for the X appropriate psychological or therapeutic services to support her to re-establish and maintain a relationship with her father. For the purpose of this order:
(a)each party shall make themselves and the child available to meet with the therapist as requested;
(b)each party shall use their best endeavours to implement the reasonable recommendations of the therapist; and
(c)unless otherwise agreed, the father shall pay the costs of the therapy.
Within 60 days the parents shall each separately engage the services of an appropriately qualified psychologist or other therapist to assist them to appropriately support the child’s relationship with her father.
Each parent may provide to their own therapist and the child’s therapist a copy of the following documents:
(a)these orders and reasons for decision;
(b)the report of Dr B dated 8 August 2018; and
(c)the family report dated 15 May 2018.
Within three months of these orders, each party shall take all steps necessary to enrol in and complete a post-separation parenting course, preferably focused…

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 AKBARI & AKBARI

Details

AGLC: Akbari and Akbari [2019] FCCA 3752
Case: [2019] FCCA 3752
Decision Date: 23 December 2019

CaseChat Overview and Summary

In the matter of *Akbari & Akbari*, Judge Hughes of the Family Court of Australia considered parenting orders concerning a child, X, born in 2006. The dispute involved allegations of family violence and parental alienation, with the child exhibiting resistance to spending time with her father.

The court was required to determine the most appropriate parenting arrangements for X, taking into account her wishes, the impact of family violence, and the allegations of parental alienation. Key issues included the allocation of parental responsibility, the child's living arrangements, the nature and extent of contact between X and her father, and the steps necessary to facilitate a positive relationship between them. The court also had to consider orders restraining certain behaviours and the involvement of professionals and the independent children's lawyer.

Judge Hughes discharged all previous parenting orders and made new orders reflecting the child's wishes. The mother was granted sole parental responsibility, and X was to live with her. Contact with the father was to occur in accordance with X's wishes, supplemented by supervised telephone and Skype communication, and the provision of a dedicated mobile phone and email address for communication. The court also mandated psychological and therapeutic services for X and both parents to support the re-establishment of the father-child relationship, with the father to bear the costs of X's therapy unless otherwise agreed. Restraining orders were put in place to prevent the father from attending the mother's home and from bringing X into contact with specific relatives. Both parents were restrained from denigrating each other to X and from discussing the proceedings with her, except to explain the arrangements. Arrangements were to be made for X to be informed of the outcome by a family consultant or independent children's lawyer. The court also made orders regarding the costs of the independent children's lawyer, with a provision for financial assessment if either party objected.

Orders

Orders of the court

All previous parenting orders in relation to the child X, born in 2006, are discharged.

The mother shall have sole responsibility for the child.

The child shall live with her mother.

The child shall spend time with her father in accordance with her wishes.

The father may communicate with the child by telephone or Skype each Friday at 7.30pm or such other time as agreed between the child and her father, and the mother shall take all reasonable steps to facilitate such communication.

The mother shall forthwith obtain and maintain a mobile phone for use by the child in communicating with her father and shall provide the number of the mobile phone to the father within seven days.

The mother shall forthwith set up an email address for communication between the parties in relation to parenting matters only and shall provide the email address to the father within seven days.

The mother shall forthwith authorise and direct the principal of any school attended by X to provide to the father copies of all of her school reports.

Within 60 days the mother shall take all steps necessary to obtain for the X appropriate psychological or therapeutic services to support her to re-establish and maintain a relationship with her father. For the purpose of this order:

(a) each party shall make themselves and the child available to meet with the therapist as requested;

(b) each party shall use their best endeavours to implement the reasonable recommendations of the therapist; and

10.

Within 60 days the parents shall each separately engage the services of an appropriately qualified psychologist or other therapist to assist them to appropriately support the child’s relationship with her father.

11.

Each parent may provide to their own therapist and the child’s therapist a copy of the following documents:

(a) these orders and reasons for decision;

(b) the report of Dr B dated 8 August 2018; and

12.

Within three months of these orders, each party shall take all steps necessary to enrol in and complete a post-separation parenting course, preferably focused on the developmental needs of adolescents.

13.

The father is restrained from attending at or approaching the mother’s home without the written agreement of the mother.

14.

The father is restrained from bringing the child into contact with her paternal uncle, Mr C, or her paternal aunt, Ms D.

15.

Each party is restrained from denigrating the other parent to or in the presence or hearing of the child.

16.

The mother shall forthwith make arrangements for the child to meet with the family consultant, Ms E, or the independent children’s lawyer, Ms Mistry, or the two together, for the purpose of explaining the outcome of these proceedings to the child.

17.

Each party is restrained from discussing these proceedings with the child except to explain the arrangements.

18.

Subject to order 19 below, each parent shall make a contribution to the costs of the independent children’s lawyer in the sum of $2,960.

19.

If either party objects to order 18 above, they shall, within 28 days, file and serve a financial statement and, in that event, the matter will be listed for argument in due course.

20.

Otherwise, the appointment of the independent children’s lawyer is discharged in 28 days.

21.

Apart from the issue of costs of the independent children’s lawyer, all extant applications are hereby discharged.

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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