Hashemi & Latifa - [2023] FedCFamC2F 188

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hashemi & Latifa [2023] FedCFamC2F 188

File number(s): PAC 2097 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 23 February 2023

Catchwords: FAMILY LAW – CHILDREN – Best interests of children – Orders made.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA,, 65D, 65DAA, 65Y

Cases cited: Saif & Saif [2020] FamCA 119

Division: Division 2 Family Law

Number of paragraphs: 205

Date of hearing: 6–8 February 2023

Place: Parramatta

Counsel for the Applicant: The Applicant appeared in person with Language L interpreter

Counsel for the Respondent: Ms Yu

Solicitor for the Respondent: Ellis McLachlan

Counsel for the Independent Children's Lawyer: Mr Hill

Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates
ORDERS

PAC 2097 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HASHEMI

Applicant

AND:
MR LATIFA

Respondent

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

23 FEBRUARY 2023

THE COURT ORDERS THAT:
1.All previous parenting orders in respect to the children W born in 2010, X born in 2011, Y born in 2014, and Z born in 2016, (“the children”) shall be discharged.
2.The mother and father shall have equal shared parental responsibility for the children on all aspects except for travel.
3.The father shall have sole parental responsibility for the children for the aspect of travel including both domestic and international travel. For the purposes of the Australian Passports Act 2005 (Cth), any requirement of the mother to consent to obtaining a passport or travel document for the children, is dispensed with.
4.Pursuant to section 65Y of the Family Law Act 1975 (Cth), the father shall be permitted to remove the children from the Commonwealth of Australia at his discretion for the purposes of international travel.
5.The children shall live with the father.
6.The mother shall forthwith attend to the following:
(a)Re-engage with Ms B, or equivalent psychologist, and follow all reasonable directions and recommendations of such psychologist;
(b)Re-engage with Dr C, or equivalent psychiatrist, and follow all reasonable directions and recommendations of such psychiatrist;
(c)Re-engage with Ms D from E Clinic, or equivalent mental health social worker;
(d)Engage in a certified English-speaking course;
(e)Engage with a professional in-home family support service;
(f)Apply for National Disability Insurance Scheme Funding for herself.

7.The mother shall forthwith provide her treating professionals listed at Orders 6(a)–(c) with a copy of these Orders and the Single Expert Report of Dr F dated 7 December 2021.
8.The children shall spend time with the mother on a graduating basis as follows:
(a)For two consecutive Saturdays for no less than two hours on each occasion (for a period nominated by the father), at a public venue such as a park (nominated by the father) supervised by the father (with the father to stay at a distance where he can see the children but not hear what is being said) and then;
(b)For at least two consecutive Saturdays for no less than four hours on each…

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 Hashemi & Latifa

Details

AGLC: Hashemi & Latifa [2023] FedCFamC2F 188
Case: [2023] FedCFamC2F 188
Decision Date

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia was a parenting case between Hashemi and Latifa. The Court was required to determine the best interests of the children W, X, Y, and Z, and make final parenting orders. The legal issues the Court had to decide included the allocation of parental responsibility, the living arrangements for the children, and the arrangements for the children to spend time with their mother. The Court evaluated the primary consideration of the best interests of the children under section 60CC of the Family Law Act 1975 (Cth), as well as additional considerations under section 60CC(3) of the Act. The Court also had to consider the need to protect the children from harm and the views of the children. The Court found that it would not be in the best interests of the children to have an equal time arrangement or for the children to spend three nights each week with the mother. Instead, the Court ordered that the children live with the father, and that the mother and father have equal shared parental responsibility for the children, except for travel, where the father has sole responsibility. The Court also ordered that the children spend time with the mother on a graduated basis, starting with supervised time in public venues and progressing to unsupervised overnight time, subject to certain conditions being met by the mother. The Court further ordered that the mother re-engage with her mental health professionals, complete an English-speaking course, and undertake relevant parenting courses. The Court made these orders to ensure the children's safety, promote their meaningful relationship with their mother, and support the mother in meeting their needs.

The Court's final orders included discharging all previous parenting orders, allocating equal shared parental responsibility to the parents except for travel, permitting the father to remove the children from Australia for international travel, requiring the mother to re-engage with her mental health professionals and complete an English-speaking course, and setting out a graduated schedule for the children to spend time with the mother, subject to conditions being met by the mother. The Court also ordered that the parents complete relevant parenting courses, that the children be removed from the Airport Watch List, and that the parents be restrained from certain behaviours that may harm the children. The Court certified that the preceding 205 paragraphs were a true copy of the Reasons for Judgment.

Orders