HIKMAT & JARMAIN - [2019] FamCA 703

FAMILY COURT OF AUSTRALIA

HIKMAT & JARMAIN

[2019] FamCA 703

FAMILY LAW – ENFORCEMENT OF ORDERS – where final orders were made by consent – where the mother seeks enforcement of the final orders and specifically the order requiring the parties to apply for a passport for the child – where the father complied with the orders in relation to the child’s passport during the course of the hearing

FAMILY LAW – PRACTICE AND PROCEDURE – where the father seeks to vary final parenting orders made by consent less than six months ago – consideration of the principles in Rice & Asplund –where there is no significant change in circumstances and the father’s proposal does not change the orders in a significant way to warrant re-litigating– where it is not in the child’s best interests to embark on further litigation – where the application is dismissed –where the mother is seeking costs – where the parties are directed to file and serve written submissions in relation to the issue of costs

Family Law Act 1975 (Cth)
Family Law Rules 2004

Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138
Lowe v Lowe (unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990)
Rice and Asplund (1979) FLC 90-725; 6 Fam LR 570; [1978] FamCA 84
Tindall & Saldo (2016) FLC 93-727; [2016] FamCAFC 146

APPLICANT:

Ms Hikmat

RESPONDENT:

Mr Jarmain

FILE NUMBER:

MLC

3873

2017

DATE DELIVERED:

2 October 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

11 September 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

THE RESPONDENT:

In Person

Orders

By 4.00 pm on 15 October 2019 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the mothers Application in a Case filed 8 August 2019 and the father’s Response to an Application in a Case filed 6 September 2019.
By 4.00 pm on 30 October 2019 the parties file and serve any written submissions in reply to any applications for costs.
The mothers Application in a Case filed 8 August 2019 and the father’s Response to an Application in a Case filed 6 September 2019, save and except for any applications for costs, be otherwise dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hikmat & Jarmain has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3873 of 2017

Ms Hikmat

Applicant

And

Mr Jarmain

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 HIKMAT & JARMAIN

Details

AGLC: HIKMAT & JARMAIN [2019] FamCA 703
Case: [2019] FamCA 703
Decision Date: 2 October 2019

CaseChat Overview and Summary

In the Family Court of Australia, the mother sought the enforcement of final consent orders, specifically an order requiring the parties to apply for a passport for the child. The father had complied with this passport order during the proceedings. The father, in turn, sought to vary the final parenting orders, which had been made by consent less than six months prior.

The court was required to determine whether to enforce the passport order and whether to vary the final parenting orders. In relation to the father's application to vary the orders, the court had to consider the principles established in *Rice v Asplund* and assess whether there had been a significant change in circumstances warranting a re-litigation of the parenting arrangements. The court also had to consider the mother's application for costs.

Macmillan J found that there was no significant change in circumstances and that the father's proposed variations did not alter the existing orders in a significant way that would justify further litigation. The court concluded that it was not in the child's best interests to embark on further litigation. Consequently, the father's application to vary the parenting orders was dismissed. The court also noted the mother's claim for costs and directed the parties to file written submissions on this issue.

Orders

Orders of the court

By 4.00 pm on 15 October 2019 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the mothers Application in a Case filed 8 August 2019 and the father’s Response to an Application in a Case filed 6 September 2019.

By 4.00 pm on 30 October 2019 the parties file and serve any written submissions in reply to any applications for costs.

The mothers Application in a Case filed 8 August 2019 and the father’s Response to an Application in a Case filed 6 September 2019, save and except for any applications for costs, be otherwise dismissed.

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

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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