GAWEESH & GAWEESH - [2013] FamCA 107

FAMILY COURT OF AUSTRALIA

GAWEESH & GAWEESH

[2013] FamCA 107

FAMILY LAW – CHILDREN – Best Interests – Child related proceedings – Evidence relating to child abuse and family violence – With whom the child lives – With whom the child spends time – Supervised time – Family violence – Risk – Where there are allegations of family violence against the father – Where the children have witnessed family violence against the mother

FAMILY LAW – CHILD ABUSE – Allegation – Sexual abuse – Supervised contact – Where there is no finding with respect to whether sexual abuse did or did not occur

Family Law Act 1975 (Cth) s 60B, s 60CC

B and B: Family Law Reform Act 1995 (1997) FLC 92-755.

APPLICANT:

Mr Gaweesh

RESPONDENT:

Ms Gaweesh

INDEPENDENT CHILDREN’S LAWYER:

Patrick Dooley

FILE NUMBER:

BRC

7482

2007

DATE DELIVERED:

26 February 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

11, 12, 15 & 16 August and 12 & 13 December 2011

REPRESENTATION

FOR THE APPLICANT:

(on 11, 12, 15 and 16 August 2011)

Mr Gaweesh in Person

COUNSEL FOR THE APPLICANT:

(on 12 and 13 December 2011)

Ms Chekirova

SOLICITOR FOR THE APPLICANT:

(on 12 and 13 December 2011)

Hunter Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Pratt

SOLICITOR FOR THE RESPONDENT:

Hofstee Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Zande

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

Orders

That the mother have sole parental responsibility for the children E born … September 2004 and B born … August 2006 (“the children”).
That the children live with the mother.
That the children spend time with the father for up to four hours on one occasion every four months, such time to be supervised.
That the supervised time that the children are to spend with the father shall take place by arrangement with C Contact Centre or, should that service not be able to accommodate or facilitate it, by arrangement with an independent, private provider of such supervision services agreed between the parties.
That the father shall pay the cost of the facilitation of such supervision whether it takes place at a children’s contact centre or is privately arranged.
That should the supervision need to be facilitated by an independent, private provider of such supervision services and the parties cannot agree as to the identity of such a supervisor, the mother shall, within 7 days of receipt of a written request from the father, provide the father the names, addresses and contact details of at least two or at most three proposed independent, private providers of supervision services and the father shall choose one of those providers to facilitate the supervised time with the children.
That any time the children spend with the father supervised by an independent, private provider of such services shall take place at a location determined by the supervisor.
That the father shall give the mother at least 4 weeks written notice of the date upon which…

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 GAWEESH & GAWEESH

Details

AGLC: GAWEESH & GAWEESH [2013] FamCA 107
Case: [2013] FamCA 107
Decision Date: 26 February 2013

CaseChat Overview and Summary

In the matter of *Gaweesh & Gaweesh*, Forrest J considered proceedings concerning the best interests of two children, E and B. The dispute involved allegations of family violence against the father, with the children having witnessed violence directed at the mother. The court also addressed allegations of sexual abuse, though no specific finding was made as to whether such abuse occurred.

The primary legal issues before the court were to determine with whom the children would live, with whom they would spend time, and whether that time should be supervised, particularly in light of the family violence and child abuse allegations. The court was required to assess the risk posed by the father and make orders that prioritised the children's safety and well-being.

Forrest J applied the paramount consideration of the children's best interests under the *Family Law Act 1975* (Cth). The court's reasoning focused on the need for a safe environment for the children, given the history of family violence. The court made orders for the mother to have sole parental responsibility and for the children to live with her. The father was granted supervised time with the children, limited to four hours every four months, to be facilitated by an agreed contact centre or a private provider, with the father bearing the costs. Further orders were made regarding the notification and confirmation of supervised contact arrangements, ongoing communication between parents, and the provision of reports on the children's progress. The court also issued orders restraining the father and the children from leaving the Commonwealth of Australia and requested the Australian Federal Police to place the children's names on the Airport Watch List. Finally, the court made an order concerning the children's use of terms to refer to their maternal grandfather.

Orders

Orders of the court

That the mother have sole parental responsibility for the children E born … September 2004 and B born … August 2006 (“the children”).

That the children live with the mother.

That the children spend time with the father for up to four hours on one occasion every four months, such time to be supervised.

That the supervised time that the children are to spend with the father shall take place by arrangement with C Contact Centre or, should that service not be able to accommodate or facilitate it, by arrangement with an independent, private provider of such supervision services agreed between the parties.

That the father shall pay the cost of the facilitation of such supervision whether it takes place at a children’s contact centre or is privately arranged.

That should the supervision need to be facilitated by an independent, private provider of such supervision services and the parties cannot agree as to the identity of such a supervisor, the mother shall, within 7 days of receipt of a written request from the father, provide the father the names, addresses and contact details of at least two or at most three proposed independent, private providers of supervision services and the father shall choose one of those providers to facilitate the supervised time with the children.

That any time the children spend with the father supervised by an independent, private provider of such services shall take place at a location determined by the supervisor.

That the father shall give the mother at least 4 weeks written notice of the date upon which such supervised time is to take place and all the details as to where the supervised time is to take place, who the supervisor will be if it is an independent private provider, the time it is to start and finish and the place the children are to be delivered to and collected from at the start and finish of the time.

That within 7 days of receipt by the mother of the written notice from the father in accordance with paragraph (8) of these Orders, the mother shall write to the father confirming her understanding of the arrangements that the father has made for the supervised time with the children to take place in accordance with these Orders.

10.

That the mother and the father shall keep the other parent informed at all times of a postal address at which they will receive mail on an ongoing basis, advising the other parent in advance of any proposed change to such postal address.

11.

That the mother shall at least once every 6 months send at least one recent photograph of the two girls to the father at his postal address along with a written report as to the girl’s educational progress and state of health, and in respect of any sporting, cultural or religious activity in which the girls are or have been engaged, including details of any significant changes there have been in respect of those matters between such reports.

12.

That the father Mr Gaweesh and his servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of E born … September 2004 (female) and B born … August 2006 (female), from the Commonwealth of Australia.

13.

That E born … September 2004 and B born … August 2006 be and are restrained from leaving the Commonwealth of Australia.

14.

That it is requested that the Australian Federal Police give effect to the preceding paragraphs of these Orders by placing the names of the said child or children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for a period of eight years from the date hereof.

15.

That upon expiration of the period referred to in paragraph (14) of these Orders and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.

16.

That the mother shall neither encourage nor permit the children to continue to refer to their maternal grandfather by use of the English term “daddy”, “dad” or “father” or any words of equivalent meaning in the Arabic language, but shall encourage the children to refer to their maternal grandfather by use of a term in the English or Arabic languages that appropriately connotes or describes his relationship of grandfather to them.

17.

That the Independent Children’s Lawyer is discharged two weeks from the date of these Orders.

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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