Jamal and Maalouf - [2008] FMCAfam 1406

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JAMAL & MAALOUF

[2008] FMCAfam 1406

FAMILY LAW – Interim arrangements for care of children aged 8, 6 and eighteen months – parties of Lebanese background – mother alleges father violent and domineering personality – father alleges mother has secretly relocated children from Adelaide to Melbourne without his consent – mother alleges that she had no alternative but to flee abusive relationship in order to protect best interests of children – presumption of equal shared parental responsibility – principles to be applied to application for interim relocation – meaningful relationship with both parents – protection of children from family violence – best interests.

Family Law Act 1975, ss.60B, 60CC, 61DA, 65D, 65DA, 65DAA

Bergman & Waite [2008] FMCAfam 1242
Goode & Goode (2006) FLC 92-286
In the marriage of Patsalou (1994) 18 Fam LR 426
JG & BG 18 Fam LR 255
AMS v AIF (1999) FLC 92‑852
Campbell & Spalding (unreported) Lindenmayer, Warnick and Ellis JJ delivered on 15 May 1998
U v U (2002) FLC93-112
Morgan v Miles [2007] FamCA 1230

Applicant:

MR JAMAL

Respondent:

MS MAALOUF

File Number:

ADC 4810 of 2008

Judgment of:

Brown FM

Hearing dates:

16 & 22 December 2008

Date of Last Submission:

22 December 2008

Delivered at:

Adelaide

Delivered on:

23 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr Bowler

Solicitors for the Applicant:

Legal Services Commission of SA

Counsel for the Respondent:

Ms Goldberg

Solicitors for the Respondent:

Ebejer & Associates

ORDERS

The mother return the children [X] born in 2000; [Y] born in 2002; and [Z] born in 2007 hereinafter referred to as (“the children”) to the metropolitan area of Adelaide at her own expense, by 4:00pm on 4 January 2009.

UNTIL FURTHER OR OTHER ORDER

In the event the mother elects to return to live in the Adelaide metropolitan area, pending the final hearing of this matter, the children live with the mother and spend time with the father as follows:
(a)On alternate weekends commencing 10 January 2009 from 9:00am Saturday until 6:00pm the following Sunday;
(b)In the other week commencing 14 January 2009 from 4:00pm on Wednesday until 4:00pm the following Thursday;
(c)On each of the children’s birthday for a period of three hours to be agreed between the parties and failing agreement to be from 3:00pm to 6:00pm on each of the children’s birthdays; and
(d)At any other times and on any other occasions as agreed between the parties.
The children are to be exchanged between the parties, pursuant to order 2 hereof at a location to be agreed between the parties and failing agreement to be in the foyer of the 24hour police station nearest to the father’s place of residence.
In the event the mother elects not to return to live in Adelaide permanently, pending the final hearing of this matter, the children live with the father and spend time with the mother at times to be agreed between the parties or as otherwise directed by the court but,…

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 Jamal and Maalouf

Details

AGLC: Jamal and Maalouf [2008] FMCAfam 1406
Case: [2008] FMCAfam 1406
Decision Date: 23 December 2008

CaseChat Overview and Summary

This case involves the parents of three children, [X], [Y] and [Z], born in 2000, 2002, and 2007, respectively, who have been the subject of a parenting dispute. The court was required to determine the living arrangements of the children and their visitation schedules pending a final hearing. The decision was made by the Federal Magistrates Court of Australia, presided over by Federal Magistrate Brown.

The legal issues at the centre of this case were the determination of the children’s living arrangements and visitation schedules while the case was being resolved, as well as the enforcement of these arrangements and the prevention of the children being removed from Australia. The court had to balance the best interests of the children with the competing rights and responsibilities of the parents.

The court ruled that the children should be returned to Adelaide by the mother by 4:00pm on 4 January 2009, and that the children should spend time with both parents under a specified schedule. In the event the mother chose not to return to Adelaide, the children would live with the father, but spend half of each school holiday period with the mother in Melbourne. The court also issued an order preventing either party from removing the children from Australia and requested law enforcement agencies to enforce these orders. Additionally, the court appointed an Independent Children’s Lawyer to represent the children’s interests.

The final orders included the children’s return to Adelaide, a visitation schedule for the children, and the appointment of an Independent Children’s Lawyer to represent the children’s interests. The matter was adjourned to allow for further consideration of the case.

Orders

Orders of the court

The mother return the children [X] born in 2000; [Y] born in 2002; and [Z] born in 2007 hereinafter referred to as (“the children”) to the metropolitan area of Adelaide at her own expense, by 4:00pm on 4 January 2009.

UNTIL FURTHER OR OTHER ORDER

In the event the mother elects to return to live in the Adelaide metropolitan area, pending the final hearing of this matter, the children live with the mother and spend time with the father as follows:

(a) On alternate weekends commencing 10 January 2009 from 9:00am Saturday until 6:00pm the following Sunday;

(b) In the other week commencing 14 January 2009 from 4:00pm on Wednesday until 4:00pm the following Thursday;

(c) On each of the children’s birthday for a period of three hours to be agreed between the parties and failing agreement to be from 3:00pm to 6:00pm on each of the children’s birthdays; and

(d) At any other times and on any other occasions as agreed between the parties.

The children are to be exchanged between the parties, pursuant to order 2 hereof at a location to be agreed between the parties and failing agreement to be in the foyer of the 24hour police station nearest to the father’s place of residence.

In the event the mother elects not to return to live in Adelaide permanently, pending the final hearing of this matter, the children live with the father and spend time with the mother at times to be agreed between the parties or as otherwise directed by the court but, in any event, the children spend one half of each school holiday period until the final determination of this matter with the mother in Melbourne with the costs of the children’s travel between Adelaide and Melbourne to be shared in equal proportions by the parties herein.

In the event the mother fails to comply with order 1 hereof a recovery order issue in the normal form authorising the Marshall of the court and officers of the Australian Federal Police to locate the children and deliver them to the father.

In the event the mother elects to return to live in Adelaide pursuant to order 2 hereof, the father advance her the sum of $2,000.00 by 21 January 2009 to enable her to pay a security deposit and pay rent on suitable accommodation for herself and the children in the Adelaide metropolitan area pending final hearing of the parties’ competing applications herein.

That the parties be restrained and injunctions are hereby granted restraining them from removing or causing or allowing the children [X] born in 2000; [Y] born in 2002; and [Z] born in 2007 to be removed from the Commonwealth of Australia.

The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children [X] born in 2000; [Y] born in 2002; and [Z] born in 2007 from the Commonwealth of Australia.

The Australian Federal Police place the name of the said children [X] born in 2000; [Y] born in 2002; and [Z] born in 2007 on the airport watch list enforced at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the watch list Until Further Order of this Honourable Court.

10.

Pursuant to section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children [X] born in 2000; [Y] born in 2002; and [Z] born in 2007 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

11.

Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

12.

The matter is fixed for final hearing before Federal Magistrate Brown on 4, 5 & 6 August 2009 at 10:00am NOTING 3 days allowed.

13.

Further consideration of this matter is adjourned to 11 February 2009 at 9:30am.

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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