GABER & AKHTAR - [2018] FamCA 525

FAMILY COURT OF AUSTRALIA

GABER & AKHTAR

[2018] FamCA 525

FAMILY LAW – CHILDREN – Best interests – With whom the children live – where the children, aged 13 and 11 have not spent time with the father since no later than 2013 – where there is no appearance by the father – where the father indicated at a previous Court appearance in June 2018 that he would not attend – where the mother is granted sole parental responsibility for all issues other than the children’s names – where the children will live with the mother – where the children shall spend time and communicate with the father in accordance with their wishes.

Family Law Act 1975 (Cth) Australian Passports Act 2005 (Cth)
APPLICANT:	Ms Gaber

RESPONDENT:

Mr Akhtar

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

FILE NUMBER:

PAC

3652

2013

DATE DELIVERED:

16 July 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hogan J

HEARING DATE:

16 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Kouchoo, N J Papallo Lawyers

RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hafey, Legal Aid NSW Parramatta Family Law

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous parenting Orders are discharged.
The children, X (male) born on… 2004 and Y (female) born on … 2007, live with the mother.
The mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)), other than the children’s names.
The parties shall have equal shared parental responsibility in relation to the issue of the children’s names.
The children shall spend time and communicate with the father in accordance with their wishes.
The mother shall facilitate any wish expressed by the children, or either of them, to spend time with and/or communicate with their father.
The mother shall, within seven (7) days from the date of these Orders, provide to the father:-
(a) an email address which he can use to communicate with the children;
(b)details of the children’s current school, together with a written authority enabling the father to obtain the children’s school reports, newsletters and school photograph order forms directly from the school and any associated cost shall be borne by the father.
(i)in the event that the children, or either of them, change school, the mother shall notify the father of this change via the email address … (or as notified by the father in accordance with Order 9) and provide another written authority as set out in Order 7(b).
The mother shall notify the father, via the email address … (or as notified by the father in accordance with Order 9) of any major medical issues affecting the children, or either of them and shall provide any necessary authorities to enable the father to liaise directly with any treating medical practitioner to obtain information about diagnosis, prognosis and treatment.
The father shall notify the mother via the email address…

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 GABER & AKHTAR

Details

AGLC: GABER & AKHTAR [2018] FamCA 525
Case: [2018] FamCA 525
Decision Date: 16 July 2018

CaseChat Overview and Summary

This matter concerned parenting orders made by Hogan J in the Federal Circuit and Family Court of Australia. The proceedings involved the mother and father of two children, X and Y, and concerned the living arrangements and parental responsibilities for the children.

The court was required to determine the primary caregiver for the children, the allocation of parental responsibility for long-term decisions, and the nature and extent of the children's time and communication with the father. Further issues included the father's access to information regarding the children's schooling and medical matters, and the ability of the mother to obtain passports for the children.

Hogan J ordered that the children live with the mother and that the mother have sole parental responsibility for all major long-term issues, except for the children's names, in relation to which the parties were to have equal shared parental responsibility. The children were to spend time and communicate with the father according to their wishes, with the mother to facilitate this. Specific provisions were made for the mother to provide the father with an email address for communication, details of the children's school, and to notify him of any major medical issues. The mother was also granted sole authority to obtain passports for the children, with the Registrar empowered to sign on the father's behalf if he refused. All previous parenting orders were discharged, and outstanding parenting applications were dismissed.

Orders

Orders of the court

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous parenting Orders are discharged.

The children, X (male) born on… 2004 and Y (female) born on … 2007, live with the mother.

The mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)), other than the children’s names.

The parties shall have equal shared parental responsibility in relation to the issue of the children’s names.

The children shall spend time and communicate with the father in accordance with their wishes.

The mother shall facilitate any wish expressed by the children, or either of them, to spend time with and/or communicate with their father.

The mother shall, within seven (7) days from the date of these Orders, provide to the father:-

(a) an email address which he can use to communicate with the children;

(b) details of the children’s current school, together with a written authority enabling the father to obtain the children’s school reports, newsletters and school photograph order forms directly from the school and any associated cost shall be borne by the father.

(i) in the event that the children, or either of them, change school, the mother shall notify the father of this change via the email address … (or as notified by the father in accordance with Order 9) and provide another written authority as set out in Order 7(b).

The mother shall notify the father, via the email address … (or as notified by the father in accordance with Order 9) of any major medical issues affecting the children, or either of them and shall provide any necessary authorities to enable the father to liaise directly with any treating medical practitioner to obtain information about diagnosis, prognosis and treatment.

The father shall notify the mother via the email address given in accordance with Order 7(a) of any change in his email address.

10.

The mother shall be entitled to obtain a passport for the children, or either of them, as part of the exercise of sole parental responsibility as set out in Order (3) and shall not be required to seek or obtain the consent of the father to the issue of a passport for the children, or either of them.

11.

Pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the children, X (male) born on … 2004 and Y (female) born on … 2007, are permitted to have Australian travel documents (in particular, Australian passports).

12.

In the event the father refuses to sign any document enabling the children to obtain Australian passports, the Registrar of the Court is empowered to sign the children’s passport applications to facilitate the issue of passports for X (male) born on … 2004 and Y (female) born on … 2007 on the father’s behalf.

AND IT IS FURTHER ORDERED THAT

13.

The Independent Children’s Lawyer is discharged.

14.

All outstanding Parenting Applications are dismissed.

15.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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