Hassen & Mawad

Case [2024] FedCFamC1A 193

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Hassen & Mawad [2024] FedCFamC1A 193

Appeal from: Mawad & Hassen (No 2) [2024] FedCFamC2F 356
Appeal number: NAA 112 of 2024
File number: PAC 3649 of 2019
Judgment of: CHRISTIE J
Date of judgment: 18 October 2024
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Whether primary judge erred in findings of family violence – Whether primary judge erred in assessment of findings as to unacceptable risk – Whether primary judge gave adequate reasons – Whether primary judge erred in making adverse inference against appellant – Application of the rule in Jones v Dunkel – Where appellant asserts there was a reversal of onus – Where appellant asserts he was required to prove a negative – No grounds of appeal challenging parenting orders established – Appeal dismissed.
Legislation:

Family Law Act 1975 (Cth) s 60CC

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23

Cases cited:

Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148

De Winter v De Winter (1979) 23 ALR 211

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Lavell & Lavell [2012] FamCA 34

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

RPS v R (2000) 199 CLR 620; [2000] HCA 3

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

SS Hontestroom v SS Sagaporack [1927] AC 37

Sun Alliance Insurance Ltd v Massoud (1989) VR 8

Number of paragraphs: 66
Date of hearing: 10 October 2024
Place: Sydney
Counsel for the Appellant: Mr Mathews
Solicitor for the Appellant: Berry Family Law
Counsel for the Respondent: Ms Dart
Solicitor for the Respondent: Sydney Central Family Law
Solicitor for the Independent Children's Lawyer: Harb Lawyers (Did not participate)

ORDERS

NAA 112 of 2024
PAC 3649 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR HASSEN

Appellant
AND:

MS MAWAD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

18 OCTOBER 2024

THE COURT ORDERS THAT:

1.Appeal NAA 112 of 2024 is dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons,…

Continue reading Hassen & Mawad

Sign in free to access the full text

Details
AGLC
Hassen & Mawad [2024] FedCFamC1A 193
Case
[2024] FedCFamC1A 193
Decision Date

CaseChat Overview and Summary

In the matter of Hassen v Mawad, the Federal Circuit and Family Court of Australia reviewed an appeal against final parenting orders. The appellant, Mr. Hassen, challenged the primary judge’s findings regarding family violence, the assessment of risk, and the adequacy of reasons provided for the decision. The court was tasked with determining whether the primary judge erred in these findings and whether the reasons given were adequate. Additionally, the appeal questioned whether the primary judge erred in making an adverse inference against the appellant and whether the rule in Jones v Dunkel applied.

The court examined whether the primary judge’s reasons were inadequate, considering the criteria established in Sun Alliance Insurance Ltd v Massoud and Bennett. The court found that the primary judge’s reasons were clear, comprehensive, and thorough, addressing both statutory considerations and the evidence presented. The court also assessed whether the primary judge appropriately considered certain aspects of the evidence, such as the respondent's concessions and the dismissed Apprehended Violence Order. The court concluded that the primary judge had indeed considered these elements, and the appeal’s assertion of insufficient weight given to the evidence was without merit.

The appeal was dismissed, and the final orders were made accordingly. The Federal Circuit and Family Court of Australia found no grounds to challenge the parenting orders, affirming the primary judge's decision. The appeal did not establish any errors in the primary judge's findings or reasoning. Therefore, the court upheld the original parenting orders, dismissing the appeal.

Orders

Orders of the court

NAA 112 of 2024

PAC 3649 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR HASSEN

Appellant

AND:

MS MAWAD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

18 OCTOBER 2024

THE COURT ORDERS THAT:

1. Appeal NAA 112 of 2024 is dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is accepted that the law in respect of adequacy of reasons in a discretionary judgment is that articulated by Gray J in Sun Alliance Insurance Ltd v Massoud (1989) VR 8 (at 18) and applied in Bennett & Bennett (1991) FLC 92-191 (“Bennett”) at 78,266:“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will in my opinion, be inadequate if:(a)the appeal court is unable to ascertain the reason upon which the decision is based; or(b) justice is not seen to have been done.The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”Ground 10 – The primary judge erred in failing to give proper reasons in reaching her decision that it did not illuminate the proper pathway The ground, as drafted, seems to assert inadequate reasons and failure to have regard to the requisite statutory considerations. No submissions were made about the latter contention, and to the extent that the appellant asserts inadequacy of reasons, no submissions persuade me that the primary judge’s decisions were anything other than clear, comprehensive and thorough. Neither of the two criteria applied by the Full Court in Bennett are established here and the ground must fail.Ground 11 – The primary judge erred in failing to properly consider:a. The respondent’s concessions as to the positive nature of the child’s time with the appellant pursuant to interim orders made on 19 November 2020 providing supervised time with the appellant;b. That there was no allegation beyond September 2020 of the appellant committing family violence;c. Any of the evidence of the deponent, [Ms E];d. That an Apprehended Violence Order sought against the Father was dismissed after a three day hearing in the Local Court of New South Wales. The appeal ground effectively complains that the primary judge failed to accord sufficient weight to an aspect of the evidence. Appeals which contend that insufficient weight was given to evidence are notoriously difficult since matters of weight fall within the generous ambit of the primary judge’s discretion: Norbis v Norbis (1986) 161 CLR 513 at 539–540. It is plain from the primary judge’s reasons at [248], [250], [252], [274] and [298] that her Honour properly considered the respondent’s concession as to the father/child relationship and the (theoretical) benefits of supervised time with the appellant in the context of weighing the factual findings and making the resulting orders. As previously discussed, the primary judge’s finding of intimidation of the respondent and her new partner was a finding which meets the definition of family violence and does not permit the appellant to contend that there was no allegation beyond September 2020. It is not accurate to assert, as the appellant does, that the primary judge failed to properly consider the evidence of Ms E. The primary judge plainly refers to the text message communication initiated by Ms E with the wife of Mr D’s friend which included threats about court proceedings and immigration status (at [224]) and had read and considered Ms E’s affidavit filed 19 July 2023 (at [8]). The primary judge was not required to refer to all of the evidence and a failure to so do does not mean that it has not been considered (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.