Aslam and Render - [2017] FCCA 3180

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASLAM & RENDER

[2017] FCCA 3180

Catchwords:
FAMILY LAW – Parenting – father serving very long gaol sentence – risk of harm assessment – whether in children’s best interest to spend face to face time with father – international travel.

Legislation:

Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA

Cases cited:

Goode & Goode (2007) 36 FamLR 422
Jopson & Lilwall (No.2) [2016] FamCAFC 262
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Murphy & Murphy [2007] FamCA 795
Napier & Hepburn [2006] FamCA 1316
Richards & Brown [2011] FamCA 662
Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1

Applicant:

MS ASLAM

Respondent:

MR RENDER

File Number:

PAC 4350 of 2016

Judgment of:

Judge Obradovic

Hearing date:

6 December 2017

Date of Last Submission:

6 December 2017

Delivered at:

Parramatta

Delivered on:

22 December 2017

REPRESENTATION

Counsel for the Applicant:

Ms Reid

Solicitors for the Applicant:

Emmaus Legal

Appearing for the Respondent:

In person

ORDERS

The mother shall have sole parental responsibility for making decisions in relation to the long term welfare and development of the children.
The children X born (omitted) 2005 and Y born (omitted) 2009 shall live with the mother.
The mother is at liberty to remove the children from the Commonwealth of Australia from time to time without the need of the written consent of the father for such travel.
X born (omitted) 2005 and Y born (omitted) 2009 are permitted to travel internationally without the need for the consent of the father to be provided to the issue of a passport to X born (omitted) 2005 and Y born (omitted) 2009. The mother shall be the only person with ‘parental responsibility’ of the children X born (omitted) 2005 and Y born (omitted) 2009 for the purposes of applying for, and being issued with, an Australian passport for X born (omitted) 2005 and Y born (omitted) 2009.
The mother shall within 28 days provide a designated telephone to the children for the purpose of communicating with the father between 1pm and 3pm each Saturday and the mother shall within 28 days provide the father with the telephone number for such designated telephone.
Such telephone communication is suspended in the event that the children are outside of the Commonwealth of Australia.
The mother is to retain a post office box such that the father can send correspondence to the children, and to provide the father with details of the post office box within 28 days.
The father is restrained by injunction from denigrating the mother and/or members of her family in the hearing or in the presence of the children or by way of any written communication.
Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Aslam & Render is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT

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 Aslam and Render

Details

AGLC: Aslam and Render [2017] FCCA 3180
Case: [2017] FCCA 3180
Decision Date: 22 December 2017

CaseChat Overview and Summary

In *Aslam and Render*, heard by Judge Obradovic, the dispute concerned parenting orders for two children. The proceedings involved applications by both the mother and the father, with the court ultimately making final orders regarding the children's living arrangements, parental responsibility, and communication with the father.

The court was required to determine the paramount issue of the children's best interests in relation to their residence, long-term welfare and development, and international travel. Additionally, the court considered the father's right to communicate with the children and the need to protect the children from harmful conduct by the father.

Judge Obradovic ordered that the mother have sole parental responsibility for long-term decisions concerning the children's welfare and development, and that the children live with her. The mother was granted liberty to remove the children from Australia and to apply for their passports without the father's consent. The father was to be provided with a designated telephone for communication with the children between specified hours on Saturdays, though this communication was suspended when the children were overseas. The mother was also ordered to maintain a post office box for the father's correspondence with the children. Finally, the father was restrained by injunction from denigrating the mother or her family in the children's presence or in writing.

Orders

Orders of the court

The mother shall have sole parental responsibility for making decisions in relation to the long term welfare and development of the children.

The children X born (omitted) 2005 and Y born (omitted) 2009 shall live with the mother.

The mother is at liberty to remove the children from the Commonwealth of Australia from time to time without the need of the written consent of the father for such travel.

X born (omitted) 2005 and Y born (omitted) 2009 are permitted to travel internationally without the need for the consent of the father to be provided to the issue of a passport to X born (omitted) 2005 and Y born (omitted) 2009. The mother shall be the only person with ‘parental responsibility’ of the children X born (omitted) 2005 and Y born (omitted) 2009 for the purposes of applying for, and being issued with, an Australian passport for X born (omitted) 2005 and Y born (omitted) 2009.

The mother shall within 28 days provide a designated telephone to the children for the purpose of communicating with the father between 1pm and 3pm each Saturday and the mother shall within 28 days provide the father with the telephone number for such designated telephone.

Such telephone communication is suspended in the event that the children are outside of the Commonwealth of Australia.

The mother is to retain a post office box such that the father can send correspondence to the children, and to provide the father with details of the post office box within 28 days.

The father is restrained by injunction from denigrating the mother and/or members of her family in the hearing or in the presence of the children or by way of any written communication.

Remove all outstanding issues from the list of cases awaiting finalisation.

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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