Khalil & Tahir-Ahmadi

[2012] FamCAFC 68

FAMILY COURT OF AUSTRALIA

KHALIL & TAHIR-AHMADI [2012] FamCAFC 68

FAMILY LAW – APPEAL – EVIDENCE – Application and operation of s 69ZT – Where at the commencement of the trial the trial judge made a decision and delivered reasons in relation to the application of s 69ZT – Where the father and the Independent Children’s Lawyer argued that subsection (1) should not apply because the circumstances were “exceptional”, so that the rules of evidence contained in the Evidence Act 1995 (Cth) would apply – Where the trial judge decided that the circumstances were not “exceptional” and subsection (1) should therefore apply – Where the parties were left in a position of uncertainty as to how the trial judge would treat the evidence to which objection had been raised – Where the preferable course would have been to indicate at the outset the use to which the contentious evidence would be put and what weight, if any, would be attached to it – Where the reasons for the final orders clearly explain the use and weight given to the contentious evidence – No appealable error demonstrated.

FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Family violence – Where the trial judge correctly identified the two significant issues for determination to be family violence, and orders which would best provide for a meaningful relationship with both parents – Where the mother alleged family violence was committed by the father – Where the trial judge found on the balance of probabilities that the father had committed family violence towards the mother, at times in the presence of the child – Where the evidence as to family violence objected to by the father clearly did not form the basis of the trial judge’s findings as to family violence committed by him – No appealable error demonstrated.

FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Meaningful relationship with both parents – Best interests of the child – Where the citizenship and residency status of the parents were such that the father would be living in Iran and the mother living in Australia – Where there was uncertainty as to the ability of the mother to enter Iran and she maintained she could not return in any event – Where there was uncertainty as to whether the child would be permitted to travel to Australia to visit the mother if he returned to Iran to live with the father – Where the evidence was there was some chance that the father would be able to obtain permission from the Iranian and Australian immigration authorities to visit Australia for the purposes of visiting the child – Where the child, now aged 13, was born in Iran but had lived in Australia since age 4 – Where the trial judge reasonably determined that the best interests of the child required the child live in Australia in the care of the mother and have time with the father…