KADIR & NEJIZ - [2018] FamCA 778

FAMILY COURT OF AUSTRALIA

KADIR & NEJIZ

[2018] FamCA 778

FAMILY LAW – CHILDREN – Child related proceedings – Best interests of the children – Meaningful relationship – Need to protect the children from harm – Unacceptable risk – Where the father seeks orders that the children live with him and have no contact with the mother for three months – Where the mother seeks orders that the children live with her and spend no time with the father – Where the Independent Children’s Lawyer seeks orders that the children live with the mother and spend time with the father in accordance with their wishes – Where the mother alleges that the father has sexually abused the children – Where the father denies all allegations of misconduct on his part – Where previous family therapy has been unsuccessful in facilitating a relationship between the children and the father – Where the father alleges that the mother has sought to alienate him from the children – Where the Court finds that the father has likely not sexually abused the children – Where the Court finds that the children genuinely believe that they have been sexually abused by the father – Where the Court finds that requiring the children to spend time with the father would expose them to an unacceptable risk of psychological and/or physical harm – Orders made in accordance with those sought by the Independent Children’s Lawyer for the children to live with the mother and spend time with the father in accordance with their wishes.

Convention on the Rights of the Child art. 3
Family Law Act 1975 (Cth) ss. 4AB, 43, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC,
Mental Health Act 2007 (NSW) s. 22

The Hon. John Fogarty AM, ‘Unacceptable Risk — A return to basics’ (2006) 20 Australian Journal of Family Law 249

Bant & Clayton [2015] FamCAFC 222
Blinko & Blinko [2015] FamCAFC 146
Cotton & Cotton (1983) FLC 91-330
Dundas & Blake (2013) FLC 93-552
Fitton & Kimble [2017] FCWA 106
G & C [2006] FamCA 994
Jurchenko & Foster [2014] FLC 93-598
M v M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
N & S (1996) FLC 92-655
Stott & Holgar [2017] FamCAFC 152
VR & RR (2002) FLC 93-099
W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Kadir

RESPONDENT:

Ms Nejiz

INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

FILE NUMBER:

PAC 3955 of 2014

DATE DELIVERED:

28 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

12 - 16 February 2018, 19 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ahmad

SOLICITOR FOR THE APPLICANT:

Watts McCray

COUNSEL FOR THE RESPONDENT:

Mr Morley

SOLICITOR FOR THE RESPONDENT:

Matthews Folbigg

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Daniel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

Orders

All parenting orders previously made in this matter be discharged.
The mother have sole parental responsibility for X, born … 2006 and Y, born … 2008…

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 KADIR & NEJIZ

Details

AGLC: KADIR & NEJIZ [2018] FamCA 778
Case: [2018] FamCA 778
Decision Date: 28 September 2018

CaseChat Overview and Summary

In the matter of KADIR & NEJIZ, McClelland J of the Family Court of Australia considered parenting orders concerning two children, X and Y. The dispute involved allegations of sexual abuse raised by the mother, which significantly impacted the father's relationship with the children and the terms of their future care and contact.

The court was required to determine the appropriate parenting arrangements for the children, including issues of parental responsibility, living arrangements, and the nature and extent of the father's time with and communication with the children. Further, the court had to address the father's access to information regarding the children's education and medical care, as well as the children's ability to travel internationally with the mother. The court also had to consider the prohibition of discussing the proceedings with the children.

McClelland J discharged all previous parenting orders and made new orders reflecting a shift in parental responsibility and living arrangements. The mother was granted sole parental responsibility, with the children to live with her. The father was permitted to spend time and communicate with the children in accordance with their wishes, with the mother to facilitate this. Specific provisions were made for the father to send letters and gifts, and to contact the children via email monthly, with the mother to provide updated email addresses. Crucially, both parents were prohibited from discussing the proceedings or allegations of sexual abuse in the children's presence. The father was also authorised to contact the children's schools and medical practitioners, and to receive relevant information, with the mother to provide necessary details. The mother was authorised to obtain passports for the children and permitted to travel internationally with them for up to six weeks to Hague Convention signatory countries, subject to providing the father with detailed travel information at least 30 days in advance. The parties were granted liberty to apply regarding costs, including reimbursement to the father for a portion of a single expert report.

Orders

Orders of the court

All parenting orders previously made in this matter be discharged.

The mother have sole parental responsibility for X, born … 2006 and Y, born … 2008 (“the children”).

The children live with the mother.

The children spend time and communicate with the father in accordance with their wishes and the mother is to facilitate that.

The father be permitted to send the children letters and gifts and the mother is to ensure that the children receive them.

The father be permitted to contact each of the children via email on a monthly basis and for this purpose, the mother is to keep the father informed of the children’s email addresses and advise the father of any change to the children’s email addresses, within 48 hours of such change occurring.

The father and the mother be prohibited from discussing any aspect of these proceedings, including the allegations of sexual abuse raised by the mother, in the presence or hearing of the children or allowing any other persons to do so.

These orders serve as authority for the father to contact the children’s schools and discuss the children’s progress at school and for this purpose, the mother is to provide to the father with the name/s of the children’s school/s and their contact number, within 48 hours.

These orders serve as authority for the father to obtain copies of the children’s school materials normally available to parents, including but not limited to, school reports, school photographs and school newsletters.

10.

These orders serve as authority for the father to contact the children’s treating medical practitioners and for this purpose, the mother is to provide to the father with the names and contact details of each of those persons, within 48 hours.

11.

Pursuant to s 11(1)(b) of the Passports Act 2005, the mother be authorised to obtain passports and travel documents for the children.

12.

The children be permitted to travel internationally with the mother for a period of no longer than six weeks, with such travel to be restricted to countries which are signatories to the Hague Convention or the Civil Aspects of International Child Abduction.

13.

At least 30 days prior to any intended international or domestic travel with the children, the mother shall provide the father with details of the following:

(a) Relevant dates of the intended travel, including dates of departure and return to Australia;

(b) Copies of any travel tickets, including return airfares to and from Australia; and

14.

The parties have liberty to apply in respect to the issue of costs, including costs payable to the Independent Children’s Lawyer and the question of reimbursement to the father of the amount of $12,540.00, for one half of the cost of Dr B’s Single Expert Report.

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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