Kassis and McKinley - [2020] FamCA 523

FAMILY COURT OF AUSTRALIA

KASSIS & MCKINLEY

[2020] FamCA 523

FAMILY LAW – CHILDREN – Undefended hearing – Best interests of the child – Parental Responsibility – Where the father has disengaged from the proceedings – Where the father has perpetrated family violence against the mother – Where there is concern as to the father’s drug use – Orders made as sought by the mother.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Blanch & Blanch and Crawford (1999) FLC 92-837
G & C [2006] FamCA 994
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Ms Kassis

RESPONDENT:

Mr McKinley

INDEPENDENT CHILDREN’S LAWYER:

Marsdens Law Group

FILE NUMBER:

PAC

5913

2016

DATE DELIVERED:

30 June 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

24 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fermanis

SOLICITOR FOR THE APPLICANT:

Phillip A Wilkins & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Finch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Marsdens Law Group

Orders

The mother shall have sole parental responsibility for the child X born … 2010 (“the child”).
The child shall live with the mother.
The child shall spend no time with the father and have no communication with the father.

Further Orders

The mother has sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for the child.
Pursuant to section 11(1) and (2) of the Australian Passports Act 2005 (Cth), these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the child X (born … 2010).
The Australian Passport issued to the child shall be provided to the mother to hold on behalf of the child.
The child be permitted to travel outside the Commonwealth of Australia with the mother for a holiday during school holiday periods without prior notice to or permission of the father.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kassis & McKinley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5913 of 2016

Ms Kassis

Applicant

And

Mr McKinley

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the long-term parenting arrangements for the parties’ only child, a boy aged 10 ("the child”).
Although at a…

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 Kassis and McKinley

Details

AGLC: Kassis and McKinley [2020] FamCA 523
Case: [2020] FamCA 523
Decision Date: 30 June 2020

CaseChat Overview and Summary

In the matter of *Kassis and McKinley*, heard before Hannam J, the dispute concerned the parental responsibility and living arrangements for a child born in 2010. The orders indicate a significant divergence between the parents regarding the child's welfare and future.

The court was required to determine the extent of parental responsibility each parent would hold, where the child would reside, and the nature and extent of any contact or communication between the child and the father. Furthermore, the court had to consider the practicalities of international travel and the issuance of an Australian passport for the child.

Hannam J ordered that the mother have sole parental responsibility for the child and that the child live with the mother. Crucially, the court ordered that the child spend no time with and have no communication with the father. These orders were further elaborated to grant the mother sole responsibility for obtaining an Australian passport for the child, with the court's orders providing the necessary authority for the Minister for Foreign Affairs or a delegate to issue such a passport. The passport was to be held by the mother on behalf of the child. The mother was also permitted to travel outside of Australia with the child for holidays during school periods without requiring prior notice to or permission from the father.

Orders

Orders of the court

The mother shall have sole parental responsibility for the child X born … 2010 (“the child”).

The child shall live with the mother.

The child shall spend no time with the father and have no communication with the father.

Further Orders

The mother has sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for the child.

Pursuant to section 11(1) and (2) of the Australian Passports Act 2005 (Cth), these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the child X (born … 2010).

The Australian Passport issued to the child shall be provided to the mother to hold on behalf of the child.

The child be permitted to travel outside the Commonwealth of Australia with the mother for a holiday during school holiday periods without prior notice to or permission of the father.

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

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.