Hakimi & Nasser (No. 2)

Case [2021] FamCAFC 88

FAMILY COURT OF AUSTRALIA

Hakimi & Nasser (No. 2) [2021] FamCAFC 88

Appeal from: Nasser & Hakimi [2021] FamCA 5
Appeal number(s): EAA 11 of 2021
File number(s): SYC 5345 of 2018
Judgment of: STRICKLAND, AINSLIE-WALLACE & AUSTIN JJ
Date of judgment: 8 June 2021
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders providing for the children to live with the mother and spend graduating time with the father, commencing with supervision – Orders restrain the mother from relocating with the children outside of Australia – Failure to take into account family violence pursuant to s 60CC(3)(j) of the Family Law Act 1975 (Cth) – Failure to consider the mother’s proposal of no contact with the father and the benefits of relocation – Practicality of orders – Where the mother argued the injunction preventing her relocation with the children was plainly wrong – No error demonstrated – Appeal dismissed – Costs ordered in a fixed sum with payment stayed until finalisation of property settlement proceedings.
Legislation:

Family Law Act 1975 (Cth) Pts VII, VIII, ss 60CA, 60CC, 65AA

Family Law Rules 2004 (Cth) r 19.18(1)(a)
Cases cited:

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

House v The King (1936) 55 CLR 499; [1936] HCA 40

M v M (1988) 166 CLR 69; [1988] HCA 68

Taylor and Barker (2007) FLC 93-345; [2007] FamCA 1246

U v U (2002) 211 CLR 238; [2002] HCA 36
Division: Appeal Division
Number of paragraphs: 70
Date of hearing: 25 May 2021
Place: Sydney
Solicitor for the Appellant: Ryan & Seton Lawyers
Counsel for the Appellant: Mr Levick
Solicitor for the First Respondent: Dimocks Family Lawyers
Counsel for the First Respondent: Mr Coleman SC
The Second Respondent: Litigant in person (did not participate)
Solicitor for the Independent Children’s Lawyer: Legal Aid NSW
Counsel for the Independent Children’s Lawyer: Mr Harris

ORDERS

EAA 11 of 2021
SYC 5345 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS HAKIMI

Appellant
AND:

MR NASSER

First Respondent

MS NASSER

Second Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

STRICKLAND, AINSLIE-WALLACE & AUSTIN JJ

DATE OF ORDER:

8 JUNE 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal, fixed in the sum of $15,000, payment of which is stayed until finalisation of the proceedings between the parties under Part VIII of the Family Law Act 1975 (Cth).

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

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hakimi & Nassir (No. 2) has been approved by the Chief…

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Details
AGLC
Hakimi & Nasser (No. 2) [2021] FamCAFC 88
Case
[2021] FamCAFC 88
Decision Date

CaseChat Overview and Summary

The appeal in Hakimi & Nasser (No. 2) concerned final parenting orders that had been made by the Family Court of Australia. The dispute involved the allocation of residential time and the relocation of the children to Country B, the mother's country of citizenship, with the father objecting to the children relocating. The appeal also questioned the injunction preventing the mother from relocating with the children outside Australia, as well as the consideration of family violence and the practical aspects of the orders regarding the children spending time with the father.

The legal issues before the court included whether the primary judge had failed to take into account relevant considerations, specifically family violence under s 60CC(3)(j) of the Family Law Act 1975 (Cth) and the mother's proposal for no contact with the father. The appeal also contested the primary judge's failure to consider the practicality of the orders relating to the children spending time with the father during school terms. The court needed to determine if the primary judge's findings were erroneous and whether the appeal should succeed.

The court dismissed the appeal, finding no error in the primary judge's consideration of family violence and the practicality of the orders. The court held that the paramount consideration was the children's best interests, which were best served by staying in Australia, especially considering the permanent loss of their filial relationships with the father if they moved to Country B. The court also found that the primary judge had properly considered the practical difficulties of the children travelling between their homes. Therefore, the appeal was dismissed with costs ordered in a fixed sum of $15,000, with payment stayed until finalisation of the property settlement proceedings.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of and incidental to the appeal, fixed in the sum of $15,000, payment of which is stayed until finalisation of the proceedings between the parties under Part VIII of the Family Law Act 1975 (Cth).

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

Background

Background to the litigation

For the reasons which follow, the appeal should be dismissed with costs.BACKGROUND The mother is a citizen of Country B and the father is an Australian citizen. The spouses met in Australia in 2008 while the mother was working and travelling in Australia. She returned to Country B in late 2008 when her visa expired, by which time she was pregnant with the eldest child. Several months later, the father travelled to Country B, where the spouses were married in May 2009. In late 2009, they returned with the eldest child to live in Australia. They have lived here ever since, though the mother was not always content about that situation. The spouses separated and reconciled several times during their marriage, but finally separated in September 2017. The father commenced proceedings under Pt VII of the Act in August 2018, seeking orders enabling the children to spend time with him. The mother joined issue in October 2018, seeking orders that would enable her to relocate with the children to live in Country B and to unilaterally decide if, when and how the children should ever spend any time with the father. Interim orders were first made in October 2018 by a judge of the Federal Circuit Court of Australia, which provided for the children to live with the mother and directed that they spend no time at all with the father. After the proceedings were transferred to the Family Court of Australia, more interim orders were made in March 2019, requiring the children to spend supervised time with the father and the paternal grandmother at a contact centre for two hours each alternate weekend and also requiring the two older children and the father to engage in an educational program. Another set of interim orders were made in August 2019, this time with the spouses’ consent, requiring the children to spend time with the father under professional supervision and for the children and father to participate in therapeutic counselling together. Contrary to the interim orders, the children neither spent time nor communicated with the father or paternal grandmother for three years preceding the trial (at [8]), the responsibility for which failure fell to the mother (at [27]–[28], [134] and [218]–[221]). The trial before the primary judge was conducted over four days in October and November 2020, with the final orders pronounced and reasons for judgment delivered on 19 January 2021. On the mother’s application, Aldridge J expedited the hearing of the appeal. In addition, his Honour ordered that the father’s interlocutory application to summarily dismiss the appeal be heard with the appeal. The father indicated to us that he abandoned the summary dismissal application, but maintained his opposition to the appeal.THE APPEALGround 1 – failure to take a material consideration into account This ground asserted that, notwithstanding the primary judge did allude in the reasons for judgment to the evidence of family violence pursuant to s 60CC(3)(j) of the Act, her Honour did not do so specifically in the context of the mother’s proposal to live with the children in Country B, which was said to amount to an error of law.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

This ground should fail.Ground 4 – failure to take a material consideration into account This ground alleged the primary judge failed to take into account, as a material consideration, the evidence adduced by the mother about the benefits of the children living with her in Country B. This ground is really an extension of the complaint comprising Grounds 3 and 5 and can be similarly rejected. The mother’s case was not really that the children would be better off living in Country B. Rather, her case was she would be better off living in Country B and the children would not be disadvantaged by moving with her. Of course, her desire to live in Country B was a material consideration, duly taken into account by the primary judge. But when the primary judge found the children’s best interests were better served by them staying in Australia and the mother was intent on remaining their residential carer, then the children’s best interests, being the paramount consideration (s 60CA and s 65AA), had to take precedence over the mother’s freedom to choose her place of residence. As was observed in addressing Grounds 3 and 5, the emotional detriment liable to be suffered by the children through the permanent loss of their filial relationships with the father if they moved to live in Country B was the critical determinant. This ground fails.Ground 6 – error of law This ground alleged the primary judge “failed to consider the practicality” of two sub-orders (Orders 9.3.2.1 and 9.4.1) which regulate the time the children must spend with the father during school terms after November 2021. Order 9.3.2.1 expands the children’s visits with the father in school terms to alternate weekends, commencing after school on Friday and ending on Monday morning before school resumes. Order 9.4.1 expands the visits again from the beginning of the 2023 school year, so that the alternate weekend visits in school terms commence from the conclusion of school on Thursday and end on the following Monday morning before school resumes. The evidence before the primary judge established the children live with the mother in the J region of NSW and the father lives in a western suburb of Sydney, with their homes separated by a drive of about 90 minutes’ duration (at [146]). Aside from the mother’s wish to relocate to Country B, there was no evidence that either party intended to move. As was required by s 60CC(3)(e) of the Act, in view of the distance between the spouses’ homes, the primary judge expressly did consider the practical difficulty of the children spending time with the father once the requirement for supervision ended (at [146]–[149]). In that context, the primary judge made this finding about the practicality of the orders requiring the children to be transported between the J region and the western suburbs of Sydney:147.At 11, eight and almost five the children could manage that trip if it was fortnightly. It must therefore follow that this ground of appeal, which asserts the failure to consider the practicality of the impugned orders, must fail.