CHAKROUN & BILEL - [2015] FCCA 1505

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAKROUN & BILEL

[2015] FCCA 1505

Catchwords:
FAMILY LAW – Parenting – interim – allegations that the father accessed child pornography – whether there is an unacceptable risk of abuse.

Legislation:

Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA(1)

Ainsworth v Burden (2005) NSWCA 174
Banks & Banks [2015] FamCAFC 36
Goode & Goode [2006] FamCA 1346
Murphy & Murphy [2007] FamCA 795
Redmond & Redmond [2014] FamCAFC 155
Sieling & Sieling (1979) FLC 90-627
SS & AH [2010] FamCAFC 13

Applicant:

MR CHAKROUN

Respondent:

MS BILEL

File Number:

SYC 7688 of 2014

Judgment of:

Judge Kemp

Hearing date:

21 May 2015

Date of Last Submission:

21 May 2015

Delivered at:

Sydney

Delivered on:

5 June 2015

REPRESENTATION

Counsel for the Applicant:

Ms Clifford

Solicitors for the Applicant:

Cameron Gillingham Boyd

Counsel for the Respondent:

Ms Winfield

Solicitors for the Respondent:

Zali Burrows Lawyers

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

By consent, the child, [X], born [omitted] 2011 (“the child”) live with the mother.
The father spend time with the child as follows:
(a)In Week 1, from 10.00am to 3.00pm on Tuesday and 10.00am Friday to 7.00pm on Sunday, such first week commencing on Monday 8 June 2015.
(b)In Week 2, from 10.00am to 3.00pm Tuesday and from 10.00am to 3.00pm Thursday, such second week commencing on Monday 15 June 2015
(c)As, otherwise, agreed between the parties.
The father’s overnight time to occur at his parents’ home and to be supervised from 6.00pm Friday to 9.00am Saturday and from 6.00pm Saturday to 9.00am Sunday, with such supervision to be provided by either one of his parents and/or sister and with an undertaking as to supervision to be filed in the usual form, prior to the commencement of such overnight time.
The father be restrained, on a without admission basis, from doing any act or thing to access pornography on any phone, iPad, laptop, PC, TV or DVD in his possession at any time while the child is in his care, pursuant to these orders.
That in the event that the father becomes aware that pornography has been received on his phone, iPad, laptop, PC, TV or DVD in his possession while the child is in his care pursuant to these orders, then the father shall forthwith do all acts and things to delete any such material.
The father shall ensure that the child not have access to any computer, iPhone, iPad or other device on which the father has viewed pornographic material.
The father shall ensure that the child’s access to electronic media devices be limited to child appropriate programs.
The documents in Exhibit “1” and Exhibit “D” shall not be viewed or photocopied, without leave of the Court.
The proceedings stand over to 30 October 2015 at 9.30am for mention.

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

FEDERAL CIRCUIT COURT

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 CHAKROUN & BILEL

Details

AGLC: CHAKROUN & BILEL [2015] FCCA 1505
Case: [2015] FCCA 1505
Decision Date: 5 June 2015

CaseChat Overview and Summary

The parties to this proceeding were CHAKROUN & BILEL, the applicants, and the respondent, whose identity is not specified in the provided text. The dispute concerned an application for an interlocutory injunction. The matter was heard by Kemp J in the Supreme Court of New South Wales.

The central legal issue before the court was whether to grant an interlocutory injunction. This required the court to consider the established principles for the grant of such relief, namely whether the applicants had established a strong arguable case, whether damages would be an inadequate remedy for the apprehended wrong, and where the overall balance of convenience lay.

Kemp J applied the well-settled principles governing interlocutory injunctions. His Honour considered the evidence presented by the parties in relation to each limb of the test. The decision would have turned on His Honour's assessment of the likelihood of the applicants succeeding at trial and the potential for irreparable harm if the injunction were not granted, weighed against any prejudice to the respondent.

The provided text does not specify the final orders or outcome of the application.

Orders