FADEL & JARRAH - [2014] FamCA 85

FAMILY COURT OF AUSTRALIA

FADEL & JARRAH

[2014] FamCA 85

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended proceedings – Interests of natural justice – No appearance by the father – No reasonable explanation for the father not having attended Court – Where the Court was satisfied that the father knew of the risk of orders being made in his absence – Where leave was granted to the mother to have her application heard on an undefended basis.

FAMILY LAW – CHILDREN – Best interests – Magellan list – Abuse and family violence – Where the presumption of equal shared parental responsibility was rebutted – Where there was ongoing sexual, physical and emotional abuse – Where the overwhelming concern was to protect the children from physical or psychological harm and from being exposed to abuse and family violence – Orders made for the children to live with mother and spend no time with the father – Mother to have sole parental responsibility – Orders made pursuant to s 68B of the Family Law Act 1975 (Cth) that the father be restrained from contacting or approaching or attempting to contact or approach any of the children.

FAMILY LAW – CHILDREN – Best interests – Application to change children’s surname – Application to apply for replacement passports for the children – Where the children are fearful of the father – Where the children have no relationship with their father – Where it is in the best interests of the children to permit a change of surname without the father’s consent – Where it is in the best interests of the children for the mother to be able to apply for replacement passports for the children.

Family Law Act 1975 (Cth) ss 60B, 68B, 60CA, 60CC, 61C, 61DA, 65AA & 65Y.
Births Deaths and Marriages Act 1995 (NSW) s 28(5)

Beach v Stemmler (1979) FLC 90-692
Chapman v Palmer (1978) FLC 90-510
Flanagan v Handcock (2001) FLC 93-047
George v Radford (1976) FLC 90-060
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
Jordan & Lloyd and Ors [2010] FamCA 288
Kelley v Kelly (1981) FLC 91-002
Mahoney v McKenzie (1993) FLC 92-408
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clarke (2009) 41 Fam LR 483
MRR v GR (2010) 42 Fam LR 531
Raymond v Harold [2009] FamCA 155
Skrabl v Leech (1989) FLC 92-016

APPLICANT:

Ms Fadel

RESPONDENT:

Mr Jarrah

INDEPENDENT CHILDREN’S LAWYER:

Karen L Haga & Associates

FILE NUMBER:

PAC

2015

2011

DATE DELIVERED:

21 February 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

17 & 18 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Weaver

SOLICITOR FOR THE APPLICANT:

Mahony Family Lawyers

FOR THE RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gersbach

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Karen L Haga & Associates

Orders

That the following parenting orders are made in relation to the children E born on … November 2002, J born on…

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 & JARRAH

Details

AGLC: FADEL & JARRAH [2014] FamCA 85
Case: [2014] FamCA 85
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an application by Ms Fadel (the mother) against Mr Jarrah (the father) concerning parenting arrangements for their three children. The proceedings were listed for a substantive hearing, but the father did not appear. The mother sought leave to have her application heard on an undefended basis.

The primary legal issues before the Court were whether to grant the mother leave to proceed undefended, given the father's absence and lack of a reasonable explanation, and, if so, what final parenting orders were in the best interests of the children. The Court also considered applications related to the children's surname change and the ability to obtain replacement passports.

The Court found that the father's explanation for his absence, based on medical certificates, was not a reasonable excuse, particularly in light of his ability to attend a previous court hearing and the Full Court's dismissal of his appeal to vacate the hearing dates. The Court was satisfied that the father was aware of the risk of orders being made in his absence, having been informed by telephone and by letter. Consequently, the Court granted the mother leave to proceed undefended. The Court then made orders for the children to live with the mother and for the mother to have sole parental responsibility, rebutting the presumption of equal shared parental responsibility due to findings of ongoing abuse and family violence. The Court also made orders restraining the father from contacting or approaching the children and the mother, and authorised the mother to change the children's surname and apply for replacement passports without the father's consent, deeming these actions to be in the children's best interests.

Orders