BASHIR & GHANI - [2017] FCCA 3448

FEDERAL CIRCUIT COURT OF AUSTRALIA

BASHIR & GHANI

[2017] FCCA 3448

Catchwords:
FAMILY LAW – Parenting – undefended as against the mother – allegations of family violence – children’s best interest – the father to have sole parental responsibility for the children – children live with father – no orders as to time between the children and the mother.

Applicant:

MR BASHIR

Respondent:

MR GHANI

File Number:

PAC 4940 of 2016

Judgment of:

Judge Obradovic

Hearing date:

22 November 2017

Date of Last Submission:

22 November 2017

Delivered at:

Parramatta

Delivered on:

22 November 2017

REPRESENTATION

Appearing for the Applicant:

No appearance

Counsel for the Respondent:

Ms Spain

Solicitors for the Respondent:

Falzon Legal Pty Ltd

ORDERS

All previous orders are discharged.
The father shall have sole parental responsibility for the children X born in 2012 and Y born in 2015.
The children shall live with the father.
Discharge the airport watch list order made on 29 November 2016 and the Court requests that the Australian Federal Police remove the names of the children X born in 2012 and Y born in 2015 from the Airport Watch List at all points of international arrivals and departures in Australia.
X born in 2012 and Y born in 2015 are permitted to travel internationally, without the need for the consent of the mother to be provided to the issue of a passport to the said children. The father shall be the only person with ‘parental responsibility’ of the said children for the purposes of applying for, and being issued with, an Australian passport for the said children.
Remove all outstanding issues from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4940 of 2016

MR BASHIR

Applicant

And

MR GHANI

Respondent

REASONS FOR JUDGMENT

(Ex-Tempore; Revised from Transcript)

The matter is listed for final hearing on an undefended basis today with no appearance by the applicant mother who commenced these proceedings by way of initiating application on 20 October 2016. There have been a number of Court events and orders since the filing of the initiating application with the mother either being represented or in attendance at Court on the days when the matter was before the Court, except for 6 November 2017 when there was no appearance by the mother. Certainly, on 10 August 2017 she was here personally when orders were made to prepare the matter for trial.
I am satisfied, having regard to the material relied upon in the father’s case, that the matter should proceed on an undefended basis today and that the orders which the father seeks in his amended response filed on 30 October 2017 are appropriate.[1] Those are also the orders that are reflected in the case outline document which the father has had prepared and filed on his behalf.
[1] I do 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 BASHIR & GHANI

Details

AGLC: BASHIR & GHANI [2017] FCCA 3448
Case: [2017] FCCA 3448
Decision Date: 22 November 2017

CaseChat Overview and Summary

In the Family Court of Australia, Judge Obradovic presided over proceedings concerning the parenting arrangements for two children, X (born 2012) and Y (born 2015). The proceedings were undefended as against the mother, and the case involved allegations of family violence. The central dispute revolved around the children's best interests and the appropriate parental responsibility and living arrangements.

The court was required to determine the paramount consideration of the children's best interests in the context of family violence allegations. Specifically, the court needed to decide whether the father should have sole parental responsibility for the children, where the children should live, and whether any orders for time between the children and the mother were appropriate. The court also considered the implications for international travel and passport applications for the children.

Applying the principles of the *Family Law Act 1975* (Cth), particularly concerning the best interests of the child and the impact of family violence, the court found it was in the children's best interests for the father to have sole parental responsibility. Consequently, the court ordered that the children live with the father. No orders were made regarding time between the children and the mother, reflecting the circumstances of the undefended proceedings and the allegations presented. The court also discharged previous orders, including an airport watch list order, and made specific provisions to facilitate the children's international travel under the father's sole parental responsibility for passport purposes.

Orders

Orders of the court

All previous orders are discharged.

The father shall have sole parental responsibility for the children X born in 2012 and Y born in 2015.

The children shall live with the father.

Discharge the airport watch list order made on 29 November 2016 and the Court requests that the Australian Federal Police remove the names of the children X born in 2012 and Y born in 2015 from the Airport Watch List at all points of international arrivals and departures in Australia.

X born in 2012 and Y born in 2015 are permitted to travel internationally, without the need for the consent of the mother to be provided to the issue of a passport to the said children. The father shall be the only person with ‘parental responsibility’ of the said children for the purposes of applying for, and being issued with, an Australian passport for the said children.

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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