Khalid and Khalid

[2015] FamCA 1200

FAMILY COURT OF AUSTRALIA

KHALID & KHALID [2015] FamCA 1200

FAMILY LAW – PARENTING – where an application that the mother be dealt with for contravention was dismissed
FAMILY LAW – COSTS – where the father was ordered to pay the mothers costs of an incidental to these proceedings

APPLICANT: Mr Khalid

RESPONDENT:	Ms Khalid
INDEPENDENT CHILDREN’S LAWYER:	Mr Ridge

FILE NUMBER: CAC 128 of 2014

DATE DELIVERED: 10 December 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 10 December 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr M.Z. Khalid in person

SOLICITOR FOR THE RESPONDENT: Ms Heinze

Orders

IT IS ORDERED THAT:

1. The application filed by the father on 5 December 2014 that the mother be dealt with for contravention of an order is dismissed. 

2. The father will pay the mother’s costs in the sum of $200, on or before 31 January 2016. 

3. The father’s application that the mother be dealt with for contravention of an order of the Federal Circuit Court filed on 3 December 2014 is dismissed. 

4. Each of the parties will file a financial statement on or before 4pm on 17 December 2015 and serve a sealed copy (at least by e-mail or facsimile) on or before 5pm on that day.

5. The determination of the issue about interim spouse maintenance and the Barro application order sought by the mother are adjourned for hearing on 18 December 2015. 

6. The final matter will be dealt with an on over-list basis before his Honour Justice Benjamin on 11 to 15 April 2016. 

7. If the matter is unable to be reached on that occasion it will be dealt with by his Honour Justice Watts on 19 September 2016. 

8. a.     Each of the parties will file all material upon which they seek to rely in relation to the final application about property matters on or before 26 February 2016.

   b.      No material filed after that time may be relied upon by either party in the proceedings.

   c.       Each of the parties will file on or before that same day a Minute of the Order that he or she is seeking in relation to the division of property between the parties. 

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 128 OF 2014

Mr Khalid

Applicant

And

Ms Khalid

Respondent

REASONS FOR JUDGMENT

1. In this matter, the proceedings before the Court relate to an application that the respondent mother be dealt with for contravention on an order made by his Honour Neville J in proceedings before the Federal Magistrate’s Court.  The order requires that the children spend time with their father at Suburb B on specified dates. 

2. The evidence before me is unequivocally that on eight or nine times, at least, the mother took the children to Suburb B and the children left her and went with a worker to see the father and that the father and that the children, at least C, who is the subject of the proceedings, subsequently returned within a relatively short period.  Eventually the workers at Suburb B took the view that they would not force any further attempts at contact.

3. The obligation on the father is to demonstrate that there was a breach of the order made.  In fact, it is difficult on the evidence before me to see that there is a breach at all, but assuming that the broader question is as to whether the mother facilitated the order and satisfied her obligation that she should encourage the child to attend, there is no evidence to suggest that she did not. 

4. The father referred to various text messages that were annexed to his affidavit which he put to the mother in cross-examination.  In my opinion, the text messages do not establish what the father suggests, which is that the mother was endeavouring to or dissuading the child from attending.  It is quite clear she did not want the child to attend, but that is a different matter altogether from what he has to prove.  Accordingly, the application is dismissed.

5. In the matter of Khalid & Khalid, the application filed by the father on 5 December 2014 is dismissed.  In relation to the question of costs, the primary matter under the Act is that there should, in relation to contraventions, be an order for costs.  In this situation, the mother is legally aided, which is a factor I am and can and must take into account.  The father asserts his incapacity to pay without, at this stage, my having adequate information to enable me to make a determination about that. 

6. The father was wholly unsuccessful, in my opinion.  The application was badly thought out in the first place, poorly presented ultimately to the Court and while I do not assign any blame to the father in that regard - I note he is self-represented - that does not alter the fact that the Court’s time and, ultimately, the time of the mother and her lawyer were taken up in dealing with an application that should never have been brought.  In my opinion, there is a basis, a proper basis, for there being an order for costs.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 10 December 2015.

Associate:

Date:  27 January 2016