Hamidi and Allaway and Anor - [2014] FamCA 625

FAMILY COURT OF AUSTRALIA

HAMIDI & ALLAWAY AND ANOR

[2014] FamCA 625

FAMILY LAW – CHILDREN – Interim parenting – Whom the children should live with on an interim basis – Where the subject children have lived primarily with the father since separation – Where the youngest child is in the care of the Minister of the Department of Family and Community Services and placed with the father – Where there are Children’s Court proceedings in respect of the youngest child – Where factual matters are largely in dispute or unable to be determined on an interim basis – Where there appear to be risk factors in respect of the mother – Alleged family violence

Deiter & Deiter [2011] FamCAFC 82
George and George [2013] FamCAFC 182
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Hamidi

FIRST RESPONDENT:

Ms Allaway

SECOND RESPONDENT:

Department of Family & Community Services

FILE NUMBER:

PAC

3361

2014

DATE DELIVERED:

21 July 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

21 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ryan & C Lawyers

FIRST RESPONDENT:

Self‑represented Litigant

SECOND RESPONDENT:

No appearance

Orders

The mother is to make contact with her son to return the child B to the Court forthwith.
The child B is to be placed into the childcare section of the Court today.
A representative of the Department of Family and Community Services is to attend the Court at 2.15pm today.

LATER (AT 2.15PM) WITH APPEARANCES AS BEFORE, IT IS ORDERED PENDING FURTHER ORDER THAT

The children are to live with their father.
The children are to spend no time with their mother.
The father is restrained from allowing his partner (Ms C) to live in his home and she is to vacate the house by 8.00 pm this evening.
Pursuant to section 68L of the Family Law Act 1975 (Cth), the interests of the children [D born … 2001, B born … 2013 and E born … 2013] are to be independently represented by a lawyer in these proceedings.
The parties are restrained from taking any action to change the enrolment of the children in their current schools.
The mother is restrained from contacting or approaching the children.
The Independent Children’s Lawyer to provide a copy of this order to the children’s schools.
Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.
The matter is to be the subject of assessment for inclusion in the Magellan program and is to be returned to the Registrar’s list today for further directions by the Magellan Registrar.
The mother is to leave the precincts of the Court and, in particular, not to attend the Childcare section.
The father is to take the child, B from the Court.

ORDERS MADE IN CHAMBERS

The Legal Aid Commission of New South Wales, Parramatta Office, is requested to make arrangements as soon as practicable…

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.

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Details

Case: [2014] FamCA 625
Decision Date: 21 July 2014

CaseChat Overview and Summary

This matter concerned proceedings between the mother and the father, concerning their children, D, B, and E. The dispute involved the immediate care and living arrangements for the children, as well as the mother's contact with them. The proceedings were before Hannam J.

The court was required to determine the urgent interim living arrangements for the children, the extent of the mother's contact with them, and the role of external agencies in the proceedings. Specifically, the court needed to consider the immediate placement of the child B, the long-term living arrangements for all children, and whether the father's partner should reside in the family home. Furthermore, the court was tasked with ensuring the independent representation of the children's interests and the potential intervention of the Department of Family and Community Services.

Hannam J made a series of urgent orders aimed at ensuring the safety and welfare of the children. The court ordered the immediate return of child B to the court and placement in childcare, pending further orders. Subsequently, the children were ordered to live with their father and have no time with their mother. The father was restrained from allowing his partner to live in his home, and the mother was restrained from contacting or approaching the children. The court also ordered the independent representation of the children's interests pursuant to section 68L of the *Family Law Act 1975* (Cth) and requested the intervention of the Secretary of the NSW Department of Family and Community Services pursuant to section 91B of the *Family Law Act 1975* (Cth). The matter was also referred for assessment for inclusion in the Magellan program.

Orders

Orders of the court

The mother is to make contact with her son to return the child B to the Court forthwith.

The child B is to be placed into the childcare section of the Court today.

A representative of the Department of Family and Community Services is to attend the Court at 2.15pm today.

LATER (AT 2.15PM) WITH APPEARANCES AS BEFORE, IT IS ORDERED PENDING FURTHER ORDER THAT

The children are to live with their father.

The children are to spend no time with their mother.

The father is restrained from allowing his partner (Ms C) to live in his home and she is to vacate the house by 8.00 pm this evening.

Pursuant to section 68L of the Family Law Act 1975 (Cth), the interests of the children [D born … 2001, B born … 2013 and E born … 2013] are to be independently represented by a lawyer in these proceedings.

The parties are restrained from taking any action to change the enrolment of the children in their current schools.

The mother is restrained from contacting or approaching the children.

10.

The Independent Children’s Lawyer to provide a copy of this order to the children’s schools.

11.

Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

12.

The matter is to be the subject of assessment for inclusion in the Magellan program and is to be returned to the Registrar’s list today for further directions by the Magellan Registrar.

13.

The mother is to leave the precincts of the Court and, in particular, not to attend the Childcare section.

14.

The father is to take the child, B from the Court.

ORDERS MADE IN CHAMBERS

15.

The Legal Aid Commission of New South Wales, Parramatta Office, is requested to make arrangements as soon as practicable to secure appropriate representation for the child’s interests.

16.

The parties are to provide to the Parramatta Office of the Legal Aid Commission of New South Wales, at Level 5, 91 Phillip Street, Parramatta NSW 2150 or DX 8293 Parramatta, forthwith copies of all documents upon which the parties rely in these proceedings, together with all existing Orders and copies of any relevant reports.

17.

Leave is granted to the Independent Children’s Lawyer, when appointed, to issue such subpoena as he/she considers relevant to the issues before the Court.

18.

Leave is granted to the Independent Children’s Lawyer, when appointed, to have photocopy access to documents produced on subpoena in these proceedings.

19.

The Independent Children’s Lawyer is exempt from fees pursuant to Division 2.3 of the Family Law (Fees) Regulations 2012 (Cth).

20.

In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention.

21.

Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

22.

Pursuant to Section 65DA(2) 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 party contravenes these Orders are included in these Orders, annexed hereto.

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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