El Kazemde and Hanif - [2014] FamCA 452

FAMILY COURT OF AUSTRALIA

EL KAZEMDE & HANIF

[2014] FamCA 452

FAMILY LAW – CHILDREN – Best interests – narrow dispute – father seeks that the mother be restrained from leaving Australia with the children and that she provide him with photographs and progress reports about the children – father’s application dismissed – previous findings that the father perpetrated family violence and sexual abuse – the parties agreed the children would reside with the mother and she would have sole parental responsibility for them – injunctions made precluding the father’s interaction with the children

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B, 102PE, 102PF

A & A (1998) 22 Fam LR 756
El Kazemde & Hanif [2013] FamCA 197
Goode & Goode (2006) FLC 93-286
H & K [2001] FamCA 687
H & R [2006] FamCA 878
Hepburn & Noble (2010) FLC 93-348
Marriage of Sedgley (1995) 19 Fam LR 363
MRR v GR (2010) 240 CLR 461
Re Andrew (1996) 20 Fam LR 538
V & V [2001] FamCA 78

APPLICANT:

Mr El Kazemde

RESPONDENT:

Ms Hanif

INDEPENDENT CHILDREN’S LAWYER:

KDB Holmes Solicitors

FILE NUMBER:

SYC

8453

2007

DATE DELIVERED:

27 June 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

2 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

Mr O’Brien

SOLICITOR FOR THE RESPONDENT:

Taylor & Scott

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

KDB Holmes Solicitors

Orders

Any and all former orders relating to the following children (“the children”) are discharged:
(a)       C, born … 2003;
(b)       F, born … 2003; and
(c)       G, born … 2005.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
Pursuant to s 68B of the Family Law Act:
(a)The parties are restrained from causing or permitting the children to spend any time or communicate with the father.
(b)The father is restrained from entering upon or approaching within 100 metres of:
(i)The mother’s residence; and
(ii)Any school attended by any of the children.
Pursuant to ss 102PE and 102PF(1)(c) of the Family Law Act, this suppression order prohibits the publication or other disclosure of any information which tends to reveal or identify the locality of the residence of the mother and the children until the youngest child attains his majority.
Pursuant to s 68B of the Family Law Act, the father is restrained from procuring any information, or copies of any document, from the Court’s manual or electronic file (SYC 8453/2007) that tends to disclose the locality of the residence of the mother and the children.
The parties shall forthwith take all necessary steps to remove the children’s names from the Airport Watch List, and leave is granted to furnish a sealed copy of these orders to the Australian Federal Police to facilitate implementation…

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 El Kazemde and Hanif

Details

AGLC: El Kazemde and Hanif [2014] FamCA 452
Case: [2014] FamCA 452
Decision Date: 27 June 2014

CaseChat Overview and Summary

The case of *El Kazemde and Hanif* concerned orders made by Austin J in the Family Court of Australia regarding three children. The dispute involved the parental responsibility and living arrangements for the children, as well as significant restrictions placed upon the father.

The court was required to determine the appropriate orders concerning the children's residence, parental responsibility, and communication with the father. Additionally, the court considered the necessity of restraining orders against the father, including prohibitions on contact with the children and proximity to their residences and schools, as well as the need for a suppression order to protect the mother's and children's location.

Austin J ordered that the mother have sole parental responsibility for the children and that they live with her. Crucially, the court made orders restraining the father from causing or permitting the children to spend any time or communicate with him, and also restrained him from approaching within 100 metres of the mother's residence or any school attended by the children. A suppression order was made to prevent the publication of information identifying the mother's and children's residence until the youngest child reached majority. The father was also restrained from obtaining information from the court file that could disclose their location. All outstanding applications were dismissed.

Orders

Orders of the court

Any and all former orders relating to the following children (“the children”) are discharged:

(a) C, born … 2003;

(b) F, born … 2003; and

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

Pursuant to s 68B of the Family Law Act:

(a) The parties are restrained from causing or permitting the children to spend any time or communicate with the father.

(b) The father is restrained from entering upon or approaching within 100 metres of:

(i) The mother’s residence; and

(ii) Any school attended by any of the children.

Pursuant to ss 102PE and 102PF(1)(c) of the Family Law Act, this suppression order prohibits the publication or other disclosure of any information which tends to reveal or identify the locality of the residence of the mother and the children until the youngest child attains his majority.

Pursuant to s 68B of the Family Law Act, the father is restrained from procuring any information, or copies of any document, from the Court’s manual or electronic file (SYC 8453/2007) that tends to disclose the locality of the residence of the mother and the children.

The parties shall forthwith take all necessary steps to remove the children’s names from the Airport Watch List, and leave is granted to furnish a sealed copy of these orders to the Australian Federal Police to facilitate implementation of this order.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

Any and all outstanding applications are dismissed.

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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