Kashif & Pires - [2021] FamCA 81

FAMILY COURT OF AUSTRALIA
Kashif & Pires [2021] FamCA 81

File number(s): SYC 1134 of 2021

Judgment of: REES J

Date of judgment: 26 February 2021

Catchwords: FAMILY LAW – Parenting –Whether the Family Court of Australia is an appropriate forum to determine the parenting dispute – Orders made for the child to return to Singapore – Mother’s application stayed.

Legislation:
Family Law Act 1975 (Cth) s 69E

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children done at The Hague on 19 October 1996, HCCH 34 [2003] ATS 19 (entered into force for Australia 1 August 2003)

Cases cited:
Kwon & Lee (2006) FLC 93-287

Pascarl & Oxley (2013) FLC 93-536

ZP v PS (1994) 181 CLR 639

Number of paragraphs: 53

Date of hearing: 25 February 2021

Place: Sydney

Counsel for the Applicant: Ms Lioumis

Solicitor for the Applicant: Horton Rhodes Legal

Counsel for the Respondent: Ms Swart

Solicitor for the Respondent: Paterson & Dowding
ORDERS

SYC 1134 of 2021

BETWEEN:
MR KASHIF
Applicant

AND:
MS PIRES
Respondent

ORDER MADE BY:

REES J

DATE OF ORDER:

26 FEBRUARY 2021

THE COURT ORDERS:
1.That the application of the mother for orders relating to parenting of X (“the child”) born … 2017 be stayed.
2.That each of Mr Kashif (“the father”) and Ms Pires (“the mother”) do all acts required to ensure that the child departs Australia on B Airlines on … March 2021.
3.That in order to facilitate Order 2, the mother deliver the child to the father not later than 3 pm on Friday 26 February 2021.
4.That the father is restrained from interfering with or preventing the mother from departing Australia on B Airlines … in March 2021.
5.That X born … 2017 be removed from the Family Law Watchlist on 28 February 2021.
6.That, subject to any order of the Family Justice Courts of Country C, the father is restrained from doing any act which interferes with the mother’s residence of premises at D Street, Country C … .
7.That, subject to any order of the Family Justice Courts of Country C, the father is restrained from doing any act which interferes with the mother’s right of residence in Country C.
8.That the father be entitled to hold any passports in the name of the child X and that to facilitate this order, the father or his legal representatives be entitled to collect such passports from the Registry.
9.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy…

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 Kashif & Pires

Details

AGLC: Kashif & Pires [2021] FamCA 81
Case: [2021] FamCA 81
Decision Date: 26 February 2021

CaseChat Overview and Summary

In the matter of *Kashif & Pires*, Rees J of the Family Court of Australia considered a parenting dispute between Mr Kashif (the father) and Ms Pires (the mother) concerning their child, X. The core of the dispute involved the appropriate forum for determining parenting orders and the child's future residence.

The court was required to determine whether the Family Court of Australia was the appropriate forum to adjudicate the parenting dispute, and consequently, whether to make orders for the child to return to Singapore. The proceedings also involved an application by the mother for parenting orders, which the court ultimately stayed.

Rees J reasoned that the Family Court of Australia was not the appropriate forum for the parenting dispute, given the circumstances and the child's connection to Singapore. The court made orders for the child to depart Australia and return to Singapore, staying the mother's application for parenting orders. The father was granted the right to hold the child's passports, and both parents were subject to certain restraints concerning the mother's residence in Singapore, contingent on orders from the Family Justice Courts of Country C. The court also issued orders detailing the consequences of contravening the orders made.

Orders

Orders of the court

SYC 1134 of 2021

BETWEEN:

MR KASHIF

Applicant

AND:

MS PIRES

Respondent

ORDER MADE BY:

REES J

DATE OF ORDER:

26 FEBRUARY 2021

THE COURT ORDERS:

1. That the application of the mother for orders relating to parenting of X (“the child”) born … 2017 be stayed.

2. That each of Mr Kashif (“the father”) and Ms Pires (“the mother”) do all acts required to ensure that the child departs Australia on B Airlines on … March 2021.

3. That in order to facilitate Order 2, the mother deliver the child to the father not later than 3 pm on Friday 26 February 2021.

4. That the father is restrained from interfering with or preventing the mother from departing Australia on B Airlines … in March 2021.

5. That X born … 2017 be removed from the Family Law Watchlist on 28 February 2021.

6. That, subject to any order of the Family Justice Courts of Country C, the father is restrained from doing any act which interferes with the mother’s residence of premises at D Street, Country C … .

7. That, subject to any order of the Family Justice Courts of Country C, the father is restrained from doing any act which interferes with the mother’s right of residence in Country C.

8. That the father be entitled to hold any passports in the name of the child X and that to facilitate this order, the father or his legal representatives be entitled to collect such passports from the Registry.

9. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

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File number(s):	SYC 1134 of 2021
Judgment of:	REES J
Date of judgment:	26 February 2021
Catchwords:	FAMILY LAW – Parenting –Whether the Family Court of Australia is an appropriate forum to determine the parenting dispute – Orders made for the child to return to Singapore – Mother’s application stayed.
Legislation:	Family Law Act 1975 (Cth) s 69E Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children done at The Hague on 19 October 1996, HCCH 34 [2003] ATS 19 (entered into force for Australia 1 August 2003)
Cases cited:	Kwon & Lee (2006) FLC 93-287 Pascarl & Oxley (2013) FLC 93-536 ZP v PS (1994) 181 CLR 639
Number of paragraphs:	53
Date of hearing:	25 February 2021
Place:	Sydney
Counsel for the Applicant:	Ms Lioumis
Solicitor for the Applicant:	Horton Rhodes Legal
Counsel for the Respondent:	Ms Swart
Solicitor for the Respondent:	Paterson & Dowding

SYC 1134 of 2021
BETWEEN:	MR KASHIF Applicant
AND:	MS PIRES Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	26 FEBRUARY 2021