Ishak & Khalaf - [2021] FCCA 900

FEDERAL CIRCUIT COURT OF AUSTRALIA
Ishak & Khalaf [2021] FCCA 900

File number(s): PAC 5253 of 2020

Judgment of: JUDGE OBRADOVIC

Date of judgment: 5 May 2021

Catchwords: FAMILY LAW – Interim Parenting – father convicted of assault occasioning actual bodily harm – allegations of family violence – whether an unacceptable risk of harm – whether an order is to be made for sole parental responsibility for the children – whether the children are to spend any time with the father – order for no time.

Legislation: Family Law Act 1975 (Cth), ss 61DA, 69ZL

Cases cited: Goode v Goode [2006] FamCA 1346
Keats & Keats [2016] FamCAFC 156

Number of paragraphs: 48

Date of hearing: 29 April 2021

Place: Parramatta

Appearing for the Applicant: Mr Morris

Solicitors for the Applicant: Circle Bridge Legal

Appearing for the Respondent: Ms Cruz Montalvo

Solicitors for the Respondent: Legal Aid NSW Refugee Service

Appearing for the Independent Children’s Lawyer: Ms Newland

Solicitors for the Independent Children’s Lawyer: JLM Family Lawyers
ORDERS

PAC 5253 of 2020

BETWEEN:
MR ISHAK

Applicant

AND:
MS KHALAF

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

5 MAY 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.The respondent mother shall have sole parental responsibility for the children X born in 2011 and Y born in 2014.
2.The children shall live with the respondent mother.
3.The children shall spend no time with the applicant father.
4.Within 7 days, the respondent mother is to contact B Families and enrol the children in the Anchor Program and thereafter engage the children at the first opportunity and provide to the Independent Children’s Lawyer confirmation of their enrolment.
5.Within 7 days, the applicant father shall do all acts and things necessary to engage in and complete within a reasonable time the “Taking Responsibility – A Course for Men” run by C Counselling and shall provide to the solicitors for the respondent mother and the Independent Children’s Lawyer written confirmation of the completion of such course.

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.
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IT IS NOTED that publication of this judgment under the pseudonym Ishak & Khalaf is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC

These are short form reasons pursuant to s.69ZL Family Law Act 1975 (Cth) (“the Act”).
On 29 April 2021, the Court heard the father’s application for interim parenting orders with respect to the parties’ two children:
(a)X born in 2011; and
(b)Y born in 2014.
The children have not spent any time nor communicated with their father since 18 August 2019.
There is at present an Apprehended Domestic Violence Order (“ADVO”) in place for the mother’s protection against the father. That order expires on 15 April 2022. It includes an order for no contact.
The father has also been charged and found guilty…

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 Ishak & Khalaf

Details

AGLC: Ishak & Khalaf [2021] FCCA 900
Case: [2021] FCCA 900
Decision Date: 5 May 2021

CaseChat Overview and Summary

In the matter of PAC 5253 of 2020, Mr Ishak (the applicant father) and Ms Khalaf (the respondent mother) were parties to proceedings concerning their children, X and Y. The dispute before the Federal Circuit and Family Court of Australia, presided over by Judge Obradovic, concerned the parenting arrangements for the children.

The court was required to determine the appropriate orders regarding parental responsibility, the children's living arrangements, and the extent of contact between the children and the applicant father. Additionally, the court considered the necessity of specific programs and interventions for both the respondent mother and the applicant father.

Judge Obradovic ordered that the respondent mother have sole parental responsibility for the children, and that the children live with her. Crucially, the court ordered that the children spend no time with the applicant father. The court further directed the respondent mother to enrol the children in the Anchor Program within seven days and provide confirmation of their enrolment. The applicant father was also ordered, within seven days, to engage in and complete the "Taking Responsibility – A Course for Men" run by C Counselling, and to provide written confirmation of completion to the respondent mother's solicitors and the Independent Children's Lawyer. These orders were made pending further order of the court.

Orders

Orders of the court

PAC 5253 of 2020

BETWEEN:

MR ISHAK

Applicant

AND:

MS KHALAF

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

5 MAY 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. The respondent mother shall have sole parental responsibility for the children X born in 2011 and Y born in 2014.

2. The children shall live with the respondent mother.

3. The children shall spend no time with the applicant father.

4. Within 7 days, the respondent mother is to contact B Families and enrol the children in the Anchor Program and thereafter engage the children at the first opportunity and provide to the Independent Children’s Lawyer confirmation of their enrolment.

5. Within 7 days, the applicant father shall do all acts and things necessary to engage in and complete within a reasonable time the “Taking Responsibility – A Course for Men” run by C Counselling and shall provide to the solicitors for the respondent mother and the Independent Children’s Lawyer written confirmation of the completion of such course.

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.

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):	PAC 5253 of 2020
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	5 May 2021
Catchwords:	FAMILY LAW – Interim Parenting – father convicted of assault occasioning actual bodily harm – allegations of family violence – whether an unacceptable risk of harm – whether an order is to be made for sole parental responsibility for the children – whether the children are to spend any time with the father – order for no time.
Legislation:	Family Law Act 1975 (Cth), ss 61DA, 69ZL
Cases cited:	Goode v Goode [2006] FamCA 1346 Keats & Keats [2016] FamCAFC 156
Number of paragraphs:	48
Date of hearing:	29 April 2021
Place:	Parramatta
Appearing for the Applicant:	Mr Morris
Solicitors for the Applicant:	Circle Bridge Legal
Appearing for the Respondent:	Ms Cruz Montalvo
Solicitors for the Respondent:	Legal Aid NSW Refugee Service
Appearing for the Independent Children’s Lawyer:	Ms Newland
Solicitors for the Independent Children’s Lawyer:	JLM Family Lawyers

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	5 MAY 2021