AMIR & MAGID - [2018] FamCA 696

FAMILY COURT OF AUSTRALIA

AMIR & MAGID

[2018] FamCA 696

FAMILY LAW – CHILDREN – Child related proceedings – Best interests – Meaningful relationship – Unacceptable risk – Family violence – Where the father has not engaged in proceedings for some time – Where one child lives with the paternal grandfather – Where the paternal grandfather seeks orders that the two youngest children spend time with him – Where the father has been physically abusive towards the mother and certain of the children – Where the father has been charged with assault occasioning actual bodily harm with respect to an act of violence perpetrated against the mother – Where the paternal grandfather does not acknowledge that the father has been violent towards the mother or the children – Where the paternal grandfather has likely previously disclosed the residential address of the mother and the children to the father – Where that disclosure resulted in the father attending upon the home of the mother and the children and assaulting them – Court orders that the older child remain living with the paternal grandfather – Court orders that the younger children remain living with the mother.

Convention on the Rights of the Child art. 19
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss. 43, 60B, 60CA, 60CC, 61DA, 64C, 65C, 65DAA

Bant & Clayton [2015] FamCAFC 222
Blinko & Blinko [2015] FamCAFC 146
Cotton & Cotton (1983) FLC 91-330
Fitton & Kimble [2017] FCWA 106
G & C [2006] FamCA 994
M v M (1988) 166 CLR 69
Malcolm & Monroe and Anor(2011) FLC 93-460
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
N & S (1996) FLC 92-655
Valentine & Lacerra and Anor (2013) FLC 93-539

The Hon. John Fogarty AM, ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249

APPLICANT:

Ms Amir

RESPONDENT:

Mr Magid

INDEPENDENT CHILDREN’S LAWYER:

Shedden & Associates

FILE NUMBER:

PAC 4503 of 2014

DATE DELIVERED:

11 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

McClelland J

HEARING DATE:

25 - 26 June 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-represented

SOLICITOR FOR THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Conte-Mills

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Shedden & Associates

Orders

All previous parenting orders made in relation to the children:
(a)       C, born … 2001 ("C");
(b)       D, born … 2003 ("D"); and
(c)       E, born … 2009 ("E")
be discharged.
By consent, the child, C, born … 2001 (“C”) live with his paternal grandfather, Mr Magid (“the paternal grandfather”).
The paternal grandfather have sole parental responsibility with respect to C.
By consent, the children D, born … 2003 (“D”) and E, born … 2009 (“E”) live with the mother.
The mother have sole parental responsibility with respect to D and E.
Neither the father, nor the paternal grandfather shall spend time or communicate with D or E.

Note:…

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 AMIR & MAGID

Details

AGLC: AMIR & MAGID [2018] FamCA 696
Case: [2018] FamCA 696
Decision Date: 11 September 2018

CaseChat Overview and Summary

In the matter of *Amir & Magid*, heard before McClelland J, the dispute concerned parenting orders for three children: C, D, and E. The proceedings involved the father, the mother, and the paternal grandfather, Mr Magid.

The court was required to determine the living arrangements and parental responsibility for each of the children. Specifically, the court needed to decide whether to discharge existing parenting orders and establish new arrangements for C, D, and E, considering the consent of the parties involved.

By consent of the parties, the court ordered the discharge of all previous parenting orders. C was to live with his paternal grandfather, Mr Magid, who was granted sole parental responsibility for him. Consent orders were also made for D and E to live with their mother, who was granted sole parental responsibility for them. Furthermore, the court ordered that neither the father nor the paternal grandfather was to spend time with or communicate with D or E.

Orders

Orders of the court

All previous parenting orders made in relation to the children:

(a) C, born … 2001 ("C");

(b) D, born … 2003 ("D"); and

be discharged.

By consent, the child, C, born … 2001 (“C”) live with his paternal grandfather, Mr Magid (“the paternal grandfather”).

The paternal grandfather have sole parental responsibility with respect to C.

By consent, the children D, born … 2003 (“D”) and E, born … 2009 (“E”) live with the mother.

The mother have sole parental responsibility with respect to D and E.

Neither the father, nor the paternal grandfather shall spend time or communicate with D or E.

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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