KEYUSH & DHUPAM - [2011] FamCA 259

FAMILY COURT OF AUSTRALIA

KEYUSH & DHUPAM

[2011] FamCA 259

FAMILY LAW – CHILDREN – Interim determination as to time to be spent between the children and their father

Family Law Act 1975 (Cth): s 60B, s 60CA, s 60CC(2), s 60CC(3), s 60CC(4), s 60CC(4A), s 61DA(1), s 61DA(3), s 65DAA(3)

Goode & Goode (2006) FLC 93-286
Eddington & Eddington (No 2) (2007) FLC 93-349
MRR v GR [2010] HCA 4
Vance & Vance [2010] FamCAFC 250

APPLICANT:

Ms Keyush

RESPONDENT:

Mr Dhupam

FILE NUMBER:

CAC

1684

2007

DATE DELIVERED:

1 April 2011

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks ACJ

HEARING DATE:

1 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P. Batey

SOLICITOR FOR THE APPLICANT:

Farrar Gesini & Dunn

COUNSEL FOR THE RESPONDENT:

Mr T. Tockar

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford Simpson

Orders

IT IS NOTED THAT:

The Queensland state school holiday periods for the year 2011 are as follows:
1.1Term 1 Break: Saturday 16 April to Tuesday 26 April;
1.2Term 2 Break: Saturday 25 June to Sunday 10 July;
1.3Term 3 Break: Saturday 17 September to Sunday 2 October; and
1.4School finishes on Friday 9 December.

UNTIL FURTHER ORDER, ON AN INTERIM BASIS, IT IS ORDERED THAT:

The children, S, born … February 2002, and G, born … July 2004 ("the children"), shall spend time with the father as follows:
2.1The children shall spend time with their father in Town 1, Queensland, for one period of 10 consecutive nights in Queensland Term 2, from after school on Friday 20 May 2011 until 10.00 am on Sunday 29 May 2011;
2.2The children shall spend time with their father in Melbourne (or any holiday destination in Australia chosen by him) during the Queensland Term 1 and Term 2 holidays as follows:
2.2.1From after school on Friday 15 April 2011 until 10.00 am on Sunday 24 April 2011;
2.2.2From after school on Friday 24 June 2011 until 3.00 pm on Sunday 3 July 2011.
2.3In the event of the trial not being finalised by the middle of Queensland Term 3, the children shall spend time with the Respondent Father in Queensland Town 1 for one period of 10 consecutive nights in Queensland Term 3, from after school on Friday 12 August 2011 to 10.00 am on Sunday 21 August 2011.
All handovers required to give effect to Orders 2.1 and 2.3 above will occur at the children's school, unless the children are not attending school in which case handover shall take place at Location 1 in Queensland Town 1.
All handovers required to give effect to Order 2.2 above will occur as follows:
4.1At the commencement of the father's time with the children, at Queensland Town 2 Airport; and
4.2At the conclusion of the father's time with the children, at Location 2 in Melbourne Suburb 1.
For the purposes of giving effect to Order 4.1 above, the father should give written notice to the mother at least 10 days in advance…

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 KEYUSH & DHUPAM

Details

AGLC: KEYUSH & DHUPAM [2011] FamCA 259
Case: [2011] FamCA 259
Decision Date: 1 April 2011

CaseChat Overview and Summary

The applicants, Keyush and Dhupam, sought judicial review of a decision made by the respondent, the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicants a protection visa. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa applications was affected by jurisdictional error. This involved determining whether the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicants' claims for protection.

Faulks ACJ found that the delegate had failed to adequately consider the applicants' claims regarding their fear of persecution in their country of origin. Specifically, the delegate's assessment of the evidence provided by the applicants was found to be superficial and did not engage with the substance of their claims. The Court applied the principles of administrative law, including the requirement for decision-makers to undertake a proper consideration of all relevant evidence and to provide reasons that adequately explain the decision.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders