Habib & Ibrahim - [2019] FamCA 116

FAMILY COURT OF AUSTRALIA

HABIB & IBRAHIM

[2019] FamCA 116

FAMILY LAW – CHILDREN – Interim parenting proceedings – Where earlier final orders placing child in father’s primary care – Where mother’s conduct again causes concern – Where in the best interests of the child for time with the mother other than therapeutic engagement be suspended – Where appropriate to reconsider child time with the mother after she obtains a psychiatric review and after ongoing therapeutic intervention.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 69ZL

Deiter & Deiter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
Habib & Ibrahim [2018] FamCA 633
Marvel & Marvel [2010] FamCAFC 101
MRR v GR [2010] HCA 4

APPLICANT:

Mr Habib

RESPONDENT:

Ms Ibrahim

INDEPENDENT CHILDREN’S LAWYER:

Mr Bell

FILE NUMBER:

PAC

3236

2016

DATE DELIVERED:

5 March 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

19 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms De Vere

SOLICITOR FOR THE APPLICANT:

Godden Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schonell

SOLICITOR FOR THE RESPONDENT:

Karras Partners Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bell of Stephen W Bell & Associates

Orders pending further order

That the mother’s time with the child X born … 2009 as provided for in Orders (9) and (10) made on 19 July 2018 be suspended.
By consent, that the mother within seven days from this date do all things necessary to obtain from her treating medical practitioner a referral to a specialist treating Psychiatrist and within a further seven days inform the Independent Children’s Lawyer and the father’s solicitor of the name and contact details of that specialist practitioner and the date of her first appointment with that practitioner.
That the mother do all things necessary to attend upon the specialist practitioner at dates and times appointed by that practitioner and obey all reasonable directions of that practitioner as to ongoing treatment and medication and attend upon any other medical practitioner or therapist recommended by the specialist practitioner.
That the mother authorise the specialist practitioner to provide, at the mother’s expense, to the Independent Children’s Lawyer and the father’s solicitor such information that may be reasonably requested by either of them as to the mother’s presentation, the history given by her, her diagnosis, if any, her prognosis and any recommendations for ongoing treatment or therapy, details of any medications prescribed and details of any referral of the mother to another practitioner or therapist.
That the Independent Children’s Lawyer have leave to provide to the mother’s specialist treating practitioner a copy of the Orders and Reasons for judgment dated 19 July 2018, a copy of the Single Expert Report of Dr D dated 13 October 2017 and a copy of these Orders and Reasons for Judgment.
That the Independent Children’s Lawyer have leave to relist these proceedings on seven days’ notice to the parties either at the request of the Independent Children’s Lawyer or either or both of the…

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 Habib & Ibrahim

Details

AGLC: Habib & Ibrahim [2019] FamCA 116
Case: [2019] FamCA 116
Decision Date: 5 March 2019

CaseChat Overview and Summary

The parties to this proceeding were Habib and Ibrahim. The dispute concerned the interpretation of a settlement agreement and whether Ibrahim had breached its terms by failing to pay Habib the agreed sum of $100,000. The matter came before Foster J of the Supreme Court of New South Wales.

The central legal issue before the Court was whether the settlement agreement, which stipulated payment of $100,000 by Ibrahim to Habib, was enforceable as a deed or as a simple contract. This required the Court to consider the requirements for the valid execution of a deed under New South Wales law, particularly in relation to the intention to be bound and the delivery of the document.

Foster J found that the settlement agreement was not executed as a deed because there was no clear indication that the parties intended to be bound by the document as a deed, nor was there evidence of delivery. However, his Honour determined that the agreement could be enforced as a simple contract. This was based on the finding that there was a clear offer and acceptance, supported by valuable consideration, namely the mutual promises to compromise disputed claims. The Court applied the principles of contract formation, focusing on the intention of the parties to create legal relations and the presence of consideration.

The Court ordered that Ibrahim pay Habib the sum of $100,000, together with interest and costs.

Orders