ISMAT & ATTIA - [2019] FCCA 3504

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISMAT & ATTIA

[2019] FCCA 3504

Catchwords:
FAMILY LAW – Interim parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCA 240

Banks & Banks [2015] FamCAFC 36

Applicant:

MR ISMAT

Respondent:

MS ATTIA

File Number:

PAC 1642 of 2019

Judgment of:

Judge Newbrun

Hearing date:

28 November 2019

Date of Last Submission:

28 November 2019

Delivered at:

Parramatta

Delivered on:

4 December 2019

REPRESENTATION

Solicitors for the Applicant:

Ms Shilson-Josling

Solicitors for the Respondent:

Ms Khalil

Solicitors for the Independent Children’s Lawyer

Mr Layson

ORDERS

The children, X born … 2015 and Y born … 2017, live with the mother.
The children spend time with the father as follows:
(a)For a minimum of 2 hours per fortnight at the A Contact Centre or such other contact service as agreed between the parties in writing at times and dates as appointed by the contact service, and such time is to be implemented by the mother delivering and collecting the children to and from the contact service at the commencement and conclusion of the father’s time.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at times/s to be advised for the purposes of the preparation of a family report, such report to be released by the Court.
The Family Report to deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(d)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(f)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
Within 7 days of these Orders the parties must do all acts and things to enrol in a recognised post separation program such as Keeping Kids in Mind through CatholicCare, Parents not Partners through Interrelate or Parenting After Separation through Relationships Australia to assist them with reducing conflict and developing communication skills.
To facilitate the preceding order, each party must:
(a)Attend at such times, dates and places as may be advised;
(b)Pay…

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 ISMAT & ATTIA

Details

AGLC: Ismat and Attia [2019] FCCA 3504
Case: [2019] FCCA 3504
Decision Date: 4 December 2019

CaseChat Overview and Summary

In the matter of ISMAT & ATTIA, Judge Newbrun of the Federal Circuit Court of Australia considered interim parenting orders concerning two children, X and Y. The dispute involved the arrangements for the children's living situation and time spent with each parent.

The court was required to determine the interim living arrangements for the children and the extent of the father's time with them, while also considering the need for a family report and the parties' participation in post-separation programs. The overarching consideration for the court was the best interests of the children.

The court ordered that the children live with the mother and spend a minimum of two hours per fortnight with the father at a contact centre, with the mother facilitating these arrangements. Crucially, the court directed the parties and children to attend upon a family consultant for the preparation of a family report, outlining specific matters to be addressed, including the children's views, relationships with parents and significant others, the impact of separation, parental capacity, and relevant background factors. Furthermore, both parties were mandated to enrol in and complete a recognised post-separation program within seven days to assist in reducing conflict and improving communication skills, with certification of completion to be provided to the other party and the Independent Children's Lawyer. The proceedings were adjourned pending the release of the family report.

Orders

Orders of the court

The children, X born … 2015 and Y born … 2017, live with the mother.

The children spend time with the father as follows:

(a) For a minimum of 2 hours per fortnight at the A Contact Centre or such other contact service as agreed between the parties in writing at times and dates as appointed by the contact service, and such time is to be implemented by the mother delivering and collecting the children to and from the contact service at the commencement and conclusion of the father’s time.

Pursuant to section 62G(2) of the Family Law Act 1975 the parties and children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at times/s to be advised for the purposes of the preparation of a family report, such report to be released by the Court.

The Family Report to deal with the following matters:

(a) Any views expressed by the child(ren) the subject of parenting orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.

(b) The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;

(c) The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:

(i) either of the parents: or

(ii) any other child, or significant person, with whom the child(ren) has/have been living.

(d) The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.

(e) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.

(f) Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.

Within 7 days of these Orders the parties must do all acts and things to enrol in a recognised post separation program such as Keeping Kids in Mind through CatholicCare, Parents not Partners through Interrelate or Parenting After Separation through Relationships Australia to assist them with reducing conflict and developing communication skills.

To facilitate the preceding order, each party must:

(a) Attend at such times, dates and places as may be advised;

(b) Pay such fees as may be charged;

(c) Provide certifications of completion to the other party and the Independent Children’s Lawyer within 48 hours of receipt.

The proceedings are adjourned for mention to 18 September 2020 at 9:30am following the release of the Family Report.

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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