Fadel & Gibbons - [2023] FedCFamC2F 679

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fadel & Gibbons [2023] FedCFamC2F 679

File number: PAC 1807 of 2021

Judgment of: JUDGE STREET

Date of judgment: 2 June 2023

Catchwords: FAMILY LAW – PARENTING – Maternal grandparents – no time for father

Legislation:
Family Law Act 1975

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
A v A (1998) FLC 92-800

A & Z [2006] FamCA 179

Cotton & Cotton (1983) FLC 91-330

Deiter & Deiter [2011] FamCAFC 82

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Fitzwater & Fitzwater (2019) 60 Fam LR 212

G & C [2006] FamCA 994

Isles & Nelissen (2022) FLC 94-092

Johnson & Page (2007) FLC 93-344

Jurchenko & Foster (2014) FLC 93-598

Lanceley & Lanceley [1994] FamCA 94

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69

Masson v Parsons (2019) 266 CLR 554

McCall & Clark (2009) FLC 93-405

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

Stott & Holgar [2017] FamCAFC 152

Zane & Allen [2008] FamCAFC 115

Division: Division 2 Family Law

Number of paragraphs: 58

Date of hearing: 1 and 2 June 2023

Place: Sydney

Applicant’s Representative: Mr T Iuliano of Counsel

Solicitor for Applicant: Gonzalez & Co

Second and Third Respondent’s Representative: Ms C Spain of Counsel

Solicitor for Second and Third Respondent: Bell Lawyers

Independent Children Lawyer’s Representative: Mr L Reeves of Counsel

Solicitor for the Independent Children’s Lawyer: Laura K Law
ORDERS

PAC 1807 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FADEL

Applicant

AND:
MS GIBBONS

First Respondent

MS B HANEEN

Second Respondent

MR C HANEEN

Third Respondent

order made by:

JUDGE STREET

DATE OF ORDER:

2 JUNE 2023

THE COURT ORDERS THAT:
1.That the child X born 2019 (“the child”) shall live with the Maternal Grandparents Mr C Haneen and Ms B Haneen, being the Second and Third Respondents.
2.That the Second and Third Respondents, Mr C Haneen and Ms B Haneen, shall have Equal Shared Parental Responsibility for the child.
3.That the child shall spend time with the Mother supervised by either the Maternal Grandmother Ms B Haneen or Maternal Grandfather Mr C Haneen, being the Second or Third Respondents, and such time shall be agreed to in writing as between those parties.
4.That the child shall have no time with the Father.
5.The father shall be permitted to send letters, photographs, gifts and/or cards to the child by providing such things to the Maternal Grandparents and the Maternal Grandparents shall be at liberty to determine whether such things are deemed appropriate to be provided to the child.
6.Pursuant to s 68B of the Family Law Act 1975 and for the personal protection of the child, the Second and Third Respondents, Mr C Haneen and Ms B Haneen, shall be restrained from:
(a)Allowing the child to come into any form of contact…

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 Fadel & Gibbons

Details

AGLC: Fadel & Gibbons [2023] FedCFamC2F 679
Case: [2023] FedCFamC2F 679
Decision Date

CaseChat Overview and Summary

In the matter of Fadel & Gibbons, the Federal Circuit and Family Court of Australia made several parenting orders concerning the child X, born in 2019. The father, Mr Fadel, sought orders for the child to live with the mother and spend time with him. The maternal grandparents, Ms B Haneen and Mr C Haneen, opposed these orders and sought joint parental responsibility and no time for the father. The mother did not appear or participate in the proceedings. The Court found that the father had perpetrated serious family violence against the mother, who was pregnant with the child at the time, and had failed to comply with previous court orders. The Family Report recommended that the child live with the maternal grandparents and have no time with the father due to the risk of exposure to family violence.

The Court considered the best interests of the child as the paramount consideration. While there is a benefit to the child having a meaningful relationship with both parents, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence must be given greater weight. The Court found that there was an unacceptable risk of emotional harm to the child if she were to spend time with the father due to his history of serious family violence and threats against the maternal grandparents. The Court also found that requiring supervised time could adversely impact the child and the maternal grandparents. Therefore, the Court made orders for the child to live with the maternal grandparents, for the maternal grandparents to have equal shared parental responsibility, and for the child to have no time with the father.

The Court also made several other orders to protect the child, including restraining the father from attending the maternal grandparents' residences or the child's school, and restraining the mother from allowing the child to come into contact with any male partner when spending time with the child without permission. The Court found that these orders were in the best interests of the child and least likely to lead to further proceedings.

Orders