FEDERAL CIRCUIT COURT OF AUSTRALIA
| BASHIR & ELAMIN | [2020] FCCA 3526 |
| Catchwords: FAMILY LAW – Final property – adjustment of property interests – 3 year relationship – significant earning capacity of both parties – assets acquired pre and post relationship – no adjustment. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65DAA, 75, 79 Evidence Act 1995 (Cth), s.141 |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Baghti & Baghtiand Ors [2015] FamCAFC 71 Bevan & Bevan [2014] FamCAFC 19 Bondelmonte v Bondelmonte [2017] HCA 8 Chapman & Chapman [2014] FamCAFC 91 Goode & Goode [2006] FamCA 1346 Howard & Howard [2016] FamCA 455 McCall & Clark [2009] FamCAFC 92 Murphy & Murphy [2007] FamCA 795 Russell & Russell [1999] FamCA 1875 Scott & Danton [2014] FamCAFC 203 Stanford v Stanford [2012] HCA 52 Starr & Duggan [2009] FamCAFC 115 Teal & Teal [2010] FamCAFC 120 |
| Applicant: | MR BASHIR |
| Respondent: | MS ELAMIN |
| File Number: | PAC 3220 of 2017 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 16 and 17 March 2020, 2 and 9 April 2020 |
| Date of Last Submission: | 29 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 24 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Solicitors for the Applicant: | Mills Oakley Lawyers |
| Counsel for the Respondent: | Mr Livingstone |
| Solicitors for the Respondent: | Rafton Family Lawyers |
ORDERS
All previous parenting orders are discharged.
The applicant father, Mr Bashir, and the respondent mother, Ms Elamin, shall have equal shared parental responsibility for the child X, born in 2016.
The child shall live with the respondent.
The child shall spend time with the applicant as follows:
(a)From the date of these Orders until the commencement of the school year in 2021:
(i)Commencing on Wednesday 30 December 2020 and each Wednesday thereafter from 9am to 5pm; and
(ii)Commencing on Friday 25 December 2020 and each alternate week thereafter from 9am on Friday to 5pm on Sunday;
(b)From the commencement of the 2021 school year (whether or not the child has commenced school in that year) and for a further period of three months:
(i)Each Wednesday from 3pm (or after school if a school day) to 6pm; and
(ii)Each alternate week from 3pm (or after school if a school day) on Friday to 6pm on Monday;
(c)Thereafter and for a further period of three months;
(i)Each Wednesday from 3pm (or after school if a school day) to 6pm; and
(ii)Each alternate week from 3pm (or after school if a school day) on Friday to 6pm on Tuesday;
(d)Thereafter:
(i)Each alternate week on Wednesday from 3pm (or after school if a school day) to 6pm; and
(ii)Each alternate week from 3pm (or after school if a school day) on Friday to 6pm on…
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- AGLC
- BASHIR & ELAMIN [2020] FCCA 3526
- Case
- [2020] FCCA 3526
- Decision Date
CaseChat Overview and Summary
The court's reasoning in the parenting matter focused on the paramount consideration of the child's best interests. Despite the high level of conflict and allegations of family violence, the court ultimately made orders for equal shared parental responsibility. The child was ordered to live with the mother, Ms Elamin, and spend significant and substantial time with the father, Mr Bashir, with detailed provisions outlining the schedule for this time, including during school holidays and specific cultural and religious observances. The court also made orders regarding communication, information sharing, and parental conduct, including restraints on removing the child from Australia and contact with a specific organisation.
In respect of the property settlement, the court determined that no adjustment of property interests was warranted. The court found that the three-year relationship, coupled with the significant earning capacities of both parties and the acquisition of assets both pre- and post-relationship, meant that the existing property interests should remain as they were. The final orders discharged previous parenting orders and established the new parenting arrangements, with each party retaining sole entitlement to their respective assets, including real estate, vehicles, superannuation, shares, and bank accounts, with all other property to be retained by the party in possession.
Orders
Orders of the court
1.
All previous parenting orders are discharged.
2.
The applicant father, Mr Bashir, and the respondent mother, Ms Elamin, shall have equal shared parental responsibility for the child X, born in 2016.
3.
The child shall live with the respondent.
4.
The child shall spend time with the applicant as follows:
(a) From the date of these Orders until the commencement of the school year in 2021:
(i) Commencing on Wednesday 30 December 2020 and each Wednesday thereafter from 9am to 5pm; and
(ii) Commencing on Friday 25 December 2020 and each alternate week thereafter from 9am on Friday to 5pm on Sunday;
(b) From the commencement of the 2021 school year (whether or not the child has commenced school in that year) and for a further period of three months:
(i) Each Wednesday from 3pm (or after school if a school day) to 6pm; and
(ii) Each alternate week from 3pm (or after school if a school day) on Friday to 6pm on Monday;
(c) Thereafter and for a further period of three months;
(i) Each Wednesday from 3pm (or after school if a school day) to 6pm; and
(ii) Each alternate week from 3pm (or after school if a school day) on Friday to 6pm on Tuesday;
(d) Thereafter:
(i) Each alternate week on Wednesday from 3pm (or after school if a school day) to 6pm; and
(ii) Each alternate week from 3pm (or after school if a school day) on Friday to 6pm on Wednesday;
(e) At all other times as agreed to between the parents in writing.
5.
When the child commences school, the time in sub-paragraphs (4)(b)-(d) above shall occur during the school term only, and the child shall spend time with the applicant for half of each school holiday period as agreed between the parents in writing and failing agreement:
(a) The first half in odd numbered years commencing on the last day of school and concluding at 6pm on the middle Sunday of the school holiday period; and
(b) The second half in even numbered years commencing at 6pm on the middle Sunday of the school holiday period and concluding on the first day of the new school term.
6.
Notwithstanding any other order, the child shall spend time:
(a) With the respondent on Mother’s Day weekend from 3pm (or after school if a school day) on Friday to 9am (or the commencement of school if a school day) on Monday;
(b) With the applicant on Father’s Day weekend from 3pm (or after school if a school day) on Friday to 9am (or the commencement of school if a school day) on Monday.
7.
Notwithstanding any other order, the child shall spend time with the applicant:
(a) In each even numbered year:
(i) On the first occasion of Eid (known as Eid-Al-Fitr) from 5pm the day before the first day of that occasion of Eid until 3pm on the first day of Eid; and
(ii) On the second occasion of Eid (known as Eid Al-Adha) from 3pm on the first day of that occasion of Eid until 5pm on the second day of that occasion of Eid.
(b) In each odd numbered year:
(i) On the first occasion of Eid (known as Eid-Al-Fitr) from 3pm on the first day of that occasion of Eid until 5pm on the second day of that occasion of Eid; and
(ii) On the second occasion of Eid (known as Eid Al-Adha) from 5pm the day before the first day of Eid until 3:00pm on the first day of Eid.
With the first day of the Eid occasion to coincide with the first day of the Eid occasion celebrated in Australia.
8.
Notwithstanding any other order, the child shall spend time with the respondent:
(a) In each even numbered year:
(i) On the first occasion of Eid (known as Eid-Al-Fitr) from 3pm on the first day of that occasion of Eid until 5pm on the second day of that occasion of Eid; and
(ii) On the second occasion of Eid (known as Eid Al-Adha) from 5pm the day before the first day of Eid until 3pm on the first day of Eid.
(b) In each odd numbered year:
(i) On the first occasion of Eid (known as Eid-Al-Fitr) from 5pm the day before the first day of Eid until 3:00pm on the first day of Eid; and
(ii) On the second occasion of Eid (known as Eid Al-Adha) from 3pm on the first day of that occasion of Eid until 5pm on the second day of that occasion of Eid
With the first day of the Eid occasion to coincide with the first day of the Eid occasion celebrated in Australia.
9.
Unless changeover occurs at the child’s pre/school or child care centre, changeover shall occur at the parties’ homes, with the applicant or his nominee to collect the child from the respondent’s home at the commencement of the child’s time with the applicant and the respondent or her nominee to collect the child from the applicant’s home at the conclusion of the child’s time with the applicant.
10.
The applicant and respondent shall be at liberty to communicate with the child on at least two occasions per week when the child is in the other parents’ care and for this purpose:
(a) The applicant shall communicate with the child by Facetime/video call between 6:30pm and 7pm on a number provided by the respondent; and
(b) The respondent shall communicate with the child by Facetime/video call between 6:30pm and 7pm on a number provided by the applicant.
11.
The applicant and respondent shall keep each other advised of their contact telephone numbers and shall advise the other party within twenty-four (24) hours of any change of their contact telephone number.
12.
The applicant and respondent shall keep the other advised of their residential address and provide each other with no less than twenty-one (21) days' notice in writing of any intention to change address.
13.
The applicant and respondent do all things necessary to authorise the child's school/day care to provide to the other parent on a regular basis copies of all school reports, school newsletters and other information regarding the child's school activities.
14.
The applicant and respondent be entitled to attend all day care/school functions, sports carnivals and other school events in which parents are invited to attend.
15.
The applicant and respondent be entitled to obtain directly from any day care/school attended by the child or any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose the applicant and respondent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
16.
The applicant and respondent immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the child.
17.
The applicant and respondent shall keep the other parent notified of all extra-curricular/sporting activities that the child is enrolled in and attending whilst in their respective care.
18.
The applicant and respondent be restrained from speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the child's presence or hearing.
19.
The parties Ms Elamin, born in 1979 and Mr Bashir, born in 1980 and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of X, born in 2016 from the Commonwealth of Australia until the child turns 14 years of age.
20.
X, born in 2016 be and is hereby restrained from leaving the Commonwealth of Australia until the child turns 14 years of age.
21.
It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until 24 March 2030.
22.
Upon expiration of the period referred to in Order 21 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.
23.
The respondent is hereby restrained by injunction from causing or allowing the child to have any contact, communication or exposure with any members of or people associated with the B Organisation (Arabic: B Organisation).
24.
The applicant be solely entitled to retain and the respondent has no interest in:
(a) The property situate at and known as C Street, Suburb D in the State of New South Wales;
(b) Any motor vehicle registered in the applicant's name;
(c) The applicant's superannuation;
(d) The applicant's shares;
(e) The applicant's bank accounts; and
(f) The applicant's personal belongings.
25.
The respondent be solely entitled to retain and the applicant has no interest in:
(a) The property situate at and known as E Street, Suburb F in the State of New South Wales;
(b) Any motor vehicle registered in the respondent's name;
(c) The respondent's superannuation;
(d) The respondent's bank accounts;
(e) The respondent's shares; and
(f) The respondent's personal belongings.
26.
Unless otherwise specified in these orders the applicant and respondent each be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders.
27.
The applicant and respondent shall each do all such things as are necessary and sign all such documents as are necessary to give effect to these Orders.
28.
In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
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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