EL KAZEMDE & HANIF - [2013] FamCA 197

FAMILY COURT OF AUSTRALIA

EL KAZEMDE & HANIF

[2013] FamCA 197

FAMILY LAW – CHILDREN – Child Abuse – Finding on the balance of probabilities that the father had sexually abused his daughter – where all three children of the relationship were at unacceptable risk of harm through their subjection and exposure to child abuse and family violence

FAMILY LAW – CHILDREN – Family Violence – Finding on the balance of probabilities that the father had perpetrated family violence on the mother throughout their relationship – where the mother was at unacceptable risk of harm from subjection to family violence

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing on discrete issue – separate trial to determine issues of family violence and child sexual abuse – where a further trial, if necessary, will determine final parenting orders

FAMILY LAW – EVIDENCE – Issue Estoppel – where a foreign court had acquitted the father of charges of child abuse – where the judgment of the foreign court was admissible in evidence pursuant to s 69ZX(3)(b) of the Family Law Act 1975 (Cth) – where the Court was not bound by the findings of the foreign court – Reid & Lynch (2011) 44 Fam LR 141 and Schorel & Schorel (1990) FLC 92-144 considered

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC, 60CG, 69ZR and 69ZX
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011(Cth)
Family Law Rules 2004 (Cth) r 10.14

Briginshaw v Briginshaw (1938) 60 CLR 336
Burke v LFOT Pty Ltd (2002) 209 CLR 282
IPN Medical Centres (NSW) Pty Ltd v Idoshore Pty Ltd [2008] FCAFC 163
Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Reid v Lynch (2011) 44 Fam LR 141
Schorel & Schorel (1990) FLC 92-144
Vetter v Lake Macquarie City Council (2001) 202 CLR 439

APPLICANT:

Mr El Kazemde

RESPONDENT:

Ms Hanif

INDEPENDENT CHILDREN’S LAWYER:

KDB Holmes Solicitors

FILE NUMBER:

SYC

8453

2007

DATE DELIVERED:

27 May 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

6, 7 & 8 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A. Ladopolous

SOLICITOR FOR THE APPLICANT:

Legal Aid NSW

COUNSEL FOR THE RESPONDENT:

Ms A. Petrie

SOLICITOR FOR THE RESPONDENT:

Taylor & Scott

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Holmes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

KDB Holmes Solicitors

Orders

The proceedings are listed before the Court in its Newcastle registry at 10:00 am on Friday 7 June 2013 for consideration of further procedural orders.
Leave is granted to the parties and the Independent Children’s Lawyer to appear at the next Court event by telephone.
The parties are excused from personal attendance at the next Court event provided they are legally represented.
Leave is granted to the Independent Children’s Lawyer to furnish to the Legal Aid Commission of NSW…

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.

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Details

AGLC: EL KAZEMDE & HANIF [2013] FamCA 197
Case: [2013] FamCA 197
Decision Date: 27 May 2013

CaseChat Overview and Summary

In the matter of *EL KAZEMDE & HANIF*, Austin J of the Family Court of Australia considered allegations of child abuse and family violence. The proceedings involved the father and mother of three children, with the Independent Children’s Lawyer also participating. The court was asked to determine, on the balance of probabilities, whether the father had sexually abused his daughter and whether he had perpetrated family violence against the mother throughout their relationship. These determinations were to be made in a separate trial, with final parenting orders to be considered subsequently if necessary.

The central legal issues before the court were the findings of fact regarding child sexual abuse and family violence, and the weight to be given to a prior acquittal of the father on child abuse charges in a foreign court. The court was required to consider whether the judgment of the foreign court, admissible under s 69ZX(3)(b) of the *Family Law Act 1975* (Cth), was binding on its own findings, referencing principles from *Reid & Lynch* and *Schorel & Schorel*.

Austin J found, on the balance of probabilities, that the father had sexually abused his daughter and had perpetrated family violence against the mother. The court concluded that all three children were at an unacceptable risk of harm due to their subjection to and exposure to child abuse and family violence, and that the mother was at an unacceptable risk of harm from family violence. The court was not bound by the foreign acquittal. The proceedings were subsequently listed for further procedural orders, with leave granted for parties and the Independent Children’s Lawyer to appear by telephone and for parties to be excused from personal attendance if legally represented.

Orders

Orders of the court

The proceedings are listed before the Court in its Newcastle registry at 10:00 am on Friday 7 June 2013 for consideration of further procedural orders.

Leave is granted to the parties and the Independent Children’s Lawyer to appear at the next Court event by telephone.

The parties are excused from personal attendance at the next Court event provided they are legally represented.

Leave is granted to the Independent Children’s Lawyer to furnish to the Legal Aid Commission of NSW a copy of the reasons delivered by the Court in relation to the hearing conducted in these proceedings from Monday 6 May until Wednesday 8 May 2013.

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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