KHALIL & TAHIR-AHMADI - [2011] FamCA 521

FAMILY COURT OF AUSTRALIA

KHALIL & TAHIR-AHMADI

[2011] FamCA 521

FAMILY LAW - CHILDREN – final orders – with whom a child lives – application by the father seeking orders that the child reside with him in Iran – where the mother makes allegations of domestic violence against the father – where the father will be required to return to Iran upon the conclusion of the proceedings – where the mother is now a permanent resident in Australia – where the mother refuses to return to Iran out of fears for her safety – where the child has been resident in Australia for the majority of his life – best interests – orders that the child live with the mother and spend time with the father in Australia.

FAMILY LAW - CHILDREN – final orders – parental responsibility – whether the presumption of equal shared parental responsibility under section 61DA has been rebutted – where the father will be residing in Iran and the mother in Australia – where the parties have a poor relationship – best interests – where it is not in the best interests of the child that the parties have equal shared parental responsibility – orders that the mother have sole parental responsibility.

Family Law Act 1975 (Cth) ss 60CC, 65DAA & 69ZT.

APPLICANT:

Mr Khalil

RESPONDENT:

Ms Tahir-Ahmadi

INDEPENDENT CHILDREN’S LAWYER:

Stuart Barr

FILE NUMBER:

ADC

4408

2009

DATE DELIVERED:

7 July 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

15-23 November 2010;
1-9 February 2011;
31 March 2011
1 April 2011;
14 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mellows

SOLICITOR FOR THE APPLICANT:

Legal Services Commission of SA

COUNSEL FOR THE RESPONDENT:

Ms Dibden

SOLICITOR FOR THE RESPONDENT:

McDonald Steed McGrath Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Pickhaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stuart Barr

Orders

That the mother have sole parental responsibility for the child A born on … February 1999.
That A live with the mother.
That on or before 14 July 2011 the father deliver the child A and all his personal belongings to the mother at a place to be agreed between the parties and failing agreement at H Police Station.
That whilst the father remains resident in Australia the father spend time with A in Australia at such times as the parties may agree and in default of agreement as follows:
(a)during school term time commencing on the third Friday in school term after the father delivers A to the mother each alternate weekend from conclusion of school on Friday to the commencement of school on Monday;
(b)commencing October 2011 for the first half of each mid-term school holiday and second half of the December/January school holidays;
when the father is no longer residing in Australia at times to be agreed and in default of agreement each year for two periods of not less than two weeks for each period during school holidays commencing in December 2011/January 2012;

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 KHALIL & TAHIR-AHMADI

Details

AGLC: KHALIL & TAHIR-AHMADI [2011] FamCA 521
Case: [2011] FamCA 521
Decision Date: 7 July 2011

CaseChat Overview and Summary

In the Family Court of Australia, Dawe J considered a dispute between a father, Mr. Khalil, and a mother, Ms. Tahir-Ahmadi, concerning final orders for their child, A. The father sought orders for A to reside with him in Iran, while the mother, who had become a permanent resident in Australia and refused to return to Iran due to fears for her safety stemming from allegations of domestic violence against the father, sought orders for A to live with her in Australia. A had resided in Australia for the majority of his life.

The court was required to determine two primary legal issues. Firstly, whether the presumption of equal shared parental responsibility under section 61DA of the *Family Law Act 1975* (Cth) had been rebutted, given the parties' poor relationship and their intended future residences in Iran and Australia respectively. Secondly, the court had to determine the living arrangements for A, considering his best interests, particularly in light of the mother's safety concerns and A's established life in Australia.

Dawe J reasoned that the presumption of equal shared parental responsibility was rebutted because it was not in A's best interests for the parties to share such responsibility, given their geographical separation and strained relationship. The court applied the paramount principle that the best interests of the child are the primary consideration in determining parenting orders. Considering A's long-term residence in Australia and the mother's well-founded fears for her safety in Iran, the court concluded that it was in A's best interests to live with his mother in Australia.

Consequently, the court made orders that the mother have sole parental responsibility for A and that A live with the mother. The father was granted specific time with A in Australia while he remained resident there, with provisions for future contact when he was no longer residing in Australia. The court also made orders restraining the father from removing A from Australia without the mother's consent and placed A's name on the Airport Watch list.

Orders

Orders of the court

That the mother have sole parental responsibility for the child A born on … February 1999.

That A live with the mother.

That on or before 14 July 2011 the father deliver the child A and all his personal belongings to the mother at a place to be agreed between the parties and failing agreement at H Police Station.

That whilst the father remains resident in Australia the father spend time with A in Australia at such times as the parties may agree and in default of agreement as follows:

(a) during school term time commencing on the third Friday in school term after the father delivers A to the mother each alternate weekend from conclusion of school on Friday to the commencement of school on Monday;

(b) commencing October 2011 for the first half of each mid-term school holiday and second half of the December/January school holidays;

when the father is no longer residing in Australia at times to be agreed and in default of agreement each year for two periods of not less than two weeks for each period during school holidays commencing in December 2011/January 2012;

All handovers which take place at the commencement or conclusion of school day or term are to take place at the school attended by A.

All other handovers are to be at a place agreed between the parties and failing agreement at the H Police Station.

The mother ensure that the child A communicates with the father once a week by telephone or Skype.

Within 21 days:

(a) the mother provide to the father Skype details and telephone details; and

(b) the father to instigate and arrange the communication at times to be agreed and failing agreement on Sundays at 7.00 pm (South Australian time).

10.

The father is restrained and an injunction is granted restraining the father from removing, causing or allowing the child A born on … February 1999 to be removed from the Commonwealth of Australia without first obtaining the mother’s written consent.

11.

That the Australian Federal Police place the name of the said child A born on 18 February 1999 on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of this Honourable Court or until A attains the age of 18 years.

12.

That on the expiration of one [1] month the appointment of the Independent Children’s Lawyer is discharged.

13.

Remove all matters from the active pending cases list.

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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