Huda & Yasin - [2023] FedCFamC2F 1344

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Huda & Yasin [2023] FedCFamC2F 1344

File number(s): MLC 1299 of 2015

Judgment of: JUDGE GLASS

Date of judgment: 23 October 2023

Catchwords: FAMILY LAW – PARENTING - Whether application should be dismissed pursuant to the guideline principle in Rice & Asplund

Legislation: Family Law Act 1975 (Cth) s 60CA, 65Y

Cases cited:
Dautry & Wemple (2018) FLC 93-876

Defrey & Radnor [2021] FamCAFC 67

Defrey & Radnor (No. 2) (2021) FLC 94-044

DL & W (2012) FLC 93-496

Kuebler & Kuelber (1978) FLC 90-434

Line & Line (1997) FLC 92-729

Oberlin & Infeld (2021) FLC 94-017

Rice & Asplund (1979) FLC 90-725

Sadasivam & Seshan (2019) FLC 93-899

SPS & PLS (2008) FLC 93-363

Tindall & Saldo (2016) FLC 93-72

Division: Division 2 Family Law

Number of paragraphs: 39

Date of hearing: 13 October 2023

Place: Melbourne

Counsel for the Applicant: Mr Battley

Solicitor for the Applicant: Woodbridge Lawyers

Counsel for the Respondent: Mr Marchetti

Solicitor for the Respondent: Trapski Family Law
ORDERS

MLC 1299 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HUDA

Applicant

AND:
MR YASIN

Respondent

ORDER MADE BY:

JUDGE GLASS

DATE OF ORDER:

23 OCTOBER 2023

THE COURT ORDERS THAT:
1.All extant applications be 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:

X was born in 2013 and is now ten years old. Her parents separated in early 2014.
In 2015, X’s mother, Ms Huda, applied to the Court for parenting Orders. The proceedings were listed for trial on 15 December 2016, on which day, final parenting Orders were made by consent. Further Orders were made by consent on 10 October 2019.
The extant Orders provide for X to live with each of her parents essentially in an equal time arrangement and provide for her parents to have equal shared parental responsibility for her. Her parents are restrained from removing X from the Commonwealth of Australia, and it has been requested that the Australian Federal Police give effect to that Order by placing X’s name on the Family Law Watchlist.
Ms Huda now applies to discharge those parenting Orders and seeks new parenting orders. X’s father, Mr Yasin,…

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 Huda & Yasin

Details

AGLC: Huda & Yasin [2023] FedCFamC2F 1344
Case: [2023] FedCFamC2F 1344
Decision Date: 23 October 2023

CaseChat Overview and Summary

The matter before the Family Court involved Huda and Yasin, who were in dispute over parenting arrangements for their child. The court was required to determine whether the application for parenting orders should be dismissed in accordance with the principle set out in Rice & Asplund. The case hinged on whether the application for parenting orders was made in the best interests of the child, considering the guideline principle that courts should not readily intervene in parenting arrangements unless there is a significant risk of harm to the child.

The court needed to assess the evidence presented by both parties to determine whether the application should proceed or be dismissed under the guideline principle. It was necessary to consider the specific circumstances of the case, including the child's welfare and the potential impact of the application on the child. The court had to balance the principles of the Family Law Act with the guideline principle that the court should not readily intervene in parenting arrangements unless there is a significant risk of harm to the child.

The court found that the application for parenting orders did not meet the threshold required to warrant intervention under the guideline principle. The court held that the application was not in the best interests of the child and was not warranted given the circumstances presented. As a result, the court dismissed all extant applications in accordance with the principle in Rice & Asplund. This decision was based on the court's assessment that there was no significant risk of harm to the child, and that the application did not meet the criteria for intervention under the Family Law Act.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. All extant applications be dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 1299 of 2015
Judgment of:	JUDGE GLASS
Date of judgment:	23 October 2023
Catchwords:	FAMILY LAW – PARENTING - Whether application should be dismissed pursuant to the guideline principle in Rice & Asplund
Legislation:	Family Law Act 1975 (Cth) s 60CA, 65Y
Cases cited:	Dautry & Wemple (2018) FLC 93-876 Defrey & Radnor [2021] FamCAFC 67 Defrey & Radnor (No. 2) (2021) FLC 94-044 DL & W (2012) FLC 93-496 Kuebler & Kuelber (1978) FLC 90-434 Line & Line (1997) FLC 92-729 Oberlin & Infeld (2021) FLC 94-017 Rice & Asplund (1979) FLC 90-725 Sadasivam & Seshan (2019) FLC 93-899 SPS & PLS (2008) FLC 93-363 Tindall & Saldo (2016) FLC 93-72
Division:	Division 2 Family Law
Number of paragraphs:	39
Date of hearing:	13 October 2023
Place:	Melbourne
Counsel for the Applicant:	Mr Battley
Solicitor for the Applicant:	Woodbridge Lawyers
Counsel for the Respondent:	Mr Marchetti
Solicitor for the Respondent:	Trapski Family Law

MLC 1299 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS HUDA Applicant
AND:	MR YASIN Respondent

ORDER MADE BY:	JUDGE GLASS
DATE OF ORDER:	23 OCTOBER 2023