Ghazal and Werther - [2017] FamCA 1083

FAMILY COURT OF AUSTRALIA

GHAZAL & WERTHER

[2017] FamCA 1083

FAMILY LAW – CHILDREN – Jurisdiction – Appropriate forum – Where the mother and child have been resident in the provenance of Province F since 2009 – Where the father has placed the child on the airport watch list and seeks parenting proceedings be heard in Australia – Contended Australia is not the appropriate forum – Where the best interests of the child would be served by the parenting case being heard in the provenance of Province F – Father’s Initiating Application dismissed.

Family Law Act 1975 (Cth) ss 60I, 60CI, 60CC

Acquaah-Akuffo & Abioye [2016] FamCAFC 194 Hsing & Song [2016] FamCA 986 JJT & CCT (2004) FamCA 1104 Killam & Loeng [2015] FamCAFC 41 Re F (Abduction: custody rights) 11 (1991) Fam 32 Re J (A Child)(Custody rights: jurisdiction) [2006] 1 AC 80 Voth & Manildra Flour Mills Proprietary Limited (1990) 171 CLR 538
APPLICANT:	Mr Ghazal

RESPONDENT:

Ms Werther

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

4660

2017

DATE DELIVERED:

14 December 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

14 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Horvat

SOLICITOR FOR THE APPLICANT:

Diaspora Legal

COUNSEL FOR THE RESPONDENT:

Ms Lewis

SOLICITOR FOR THE RESPONDENT:

David Gibbs & Associates

Orders

That all applications filed by the applicant father be dismissed.
That the child B born … 2015 be forthwith removed from the Australian Federal Police Watchlist and Ms Werther be permitted to remove the said child from the Commonwealth of Australia.
That the question of costs be reserved to a date to be fixed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ghazal & Werther has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4660 of 2017

Mr Ghazal

Applicant

And

Ms Werther

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Mr Ghazal is the applicant to the proceedings. Ms Werther is the respondent. The parties are the parents of the child B born in 2015 (“the child”) aged two years and 11 months. The proceedings commenced by way of an Initiating Application filed on 8 November 2017. The application was prepared in simple form and sought the following orders:
(1)That the parties have equal shared parental responsibility for the child.
(2)That the child do spend substantial and meaningful time with the father and unless agreed in writing between the father the mother to the contrary.
(3)That the child live with the mother.

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 Ghazal and Werther

Details

AGLC: Ghazal and Werther [2017] FamCA 1083
Case: [2017] FamCA 1083
Decision Date: 14 December 2017

CaseChat Overview and Summary

In the matter of *Ghazal and Werther*, heard before Berman J, the dispute concerned applications made by the applicant father regarding his child, B. The respondent mother, Ms Werther, sought to remove the child from Australia.

The primary legal issues before the court were whether the applications filed by the father should be dismissed and whether the child B should be removed from the Australian Federal Police Watchlist to permit the mother to take the child overseas.

Berman J dismissed all applications filed by the applicant father. The court ordered that the child B be forthwith removed from the Australian Federal Police Watchlist and that Ms Werther be permitted to remove the child from the Commonwealth of Australia. The question of costs was reserved.

Orders

Orders of the court

That all applications filed by the applicant father be dismissed.

That the child B born … 2015 be forthwith removed from the Australian Federal Police Watchlist and Ms Werther be permitted to remove the said child from the Commonwealth of Australia.

That the question of costs be reserved to a date to be fixed.

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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