Khoury and Mills - [2013] FamCA 300

FAMILY COURT OF AUSTRALIA

KHOURY & MILLS

[2013] FamCA 300

FAMILY LAW – CHILDREN – Relocation – parental responsibility – with whom the children shall spend time – father has a mental health issue as a result of a motor vehicle injury – father cannot control his angry outbursts – outbursts include violent threats – family violence – need to protect children from harm – minimal benefit to the children in maintaining a meaningful relationship with the father – supervised time – supervised telephone communication.

Family Law Act 1975 (Cth) ss 60CC, 61B, 61DA, 65DAA
Family Law Legislation Amendment (Family Violence and Other Measures ) Act 2011 (Cth)

MRR v GR (2010) 240 CLR 461
Muldoon & Carlyle (2012) FLC 93-513
Sayer & Radcliffe & Anor [2012] FamCAFC 209

APPLICANT:

Mr Khoury

RESPONDENT:

Ms Mills

INDEPENDENT CHILDREN’S LAWYER:

Evans Family Lawyers

FILE NUMBER:

CAC

989

2008

DATE DELIVERED:

7 May2013

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

17, 18 September 2012
and 26 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Howard

SOLICITOR FOR THE APPLICANT:

Elizabeth Fleming & Associates

COUNSEL FOR THE RESPONDENT:

Mr D Farrar (17 and 18 September 2012)

Ms D Isaacson (26 March 2013)

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini Dunn

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs A Evans

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Evans Family Lawyers

Orders

That the mother have sole parental responsibility for L Khoury, born … 2002, and M Khoury, born … 2005 (“the children”).
That the children live with their mother.
That the father’s application for an injunction to restrain the mother from relocating from the B area be refused.
That the father may communicate with the children by telephone as follows.
(a) Each Saturday at 6pm; and
(b) On each child’s birthday at 6pm
unless the parties otherwise agree in writing. These telephone calls shall be on speaker phone, unless the parties otherwise agree.
For the purposes of facilitating Order 4 above, the mother shall facilitate and cause the children to telephone the father at the times specified in Order 4. If the father is unavailable or does not answer the call from the children at that time, no substitute call will be arranged or will occur.
While the mother remains in the B area, the children shall spend time with the father for two hours on the first Saturday of each month (unless the parties otherwise agree) supervised by X Service in B.
The mother will, if the father continues to make his mailing address available to her, provide the father from time to time with a report about the children’s development and welfare. The mother will also advise him as soon as possible of any serious medical matters relating to the children or any medical treatment they may be undergoing other than for routine childhood illnesses.
The mother will authorise and direct any schools the children attend to provide to the father, upon his request and at his…

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 Khoury and Mills

Details

AGLC: Khoury and Mills [2013] FamCA 300
Case: [2013] FamCA 300
Decision Date: 7 May 2013

CaseChat Overview and Summary

This matter concerned parenting orders for two children, L Khoury and M Khoury, born in 2002 and 2005 respectively. The dispute involved the father's application for an injunction to prevent the mother from relocating from the "B area" and the determination of the children's living arrangements and the father's contact with them. The decision was made by Faulks DCJ.

The court was required to determine the primary caregiver for the children, where the children would live, and the extent of the father's future contact with them, including the father's request for an injunction to prevent the mother's relocation. The court also had to consider the provision of information regarding the children's welfare and education to the father.

Faulks DCJ ordered that the mother have sole parental responsibility for the children and that they live with her. The father's application for an injunction to restrain the mother from relocating was refused. The court established a specific regime for the father's communication with the children, including scheduled weekly telephone calls and calls on their birthdays, to be facilitated by the mother. While the mother remained in the B area, the children were to spend time with the father for two hours on the first Saturday of each month, supervised by a named service. The mother was also ordered to provide the father with reports on the children's development and welfare, and to authorise schools to provide him with reports and notices at his expense.

The court further ordered that all other previous parenting orders in relation to the children be discharged. Provisions were made for the return of subpoenaed material and the discharge of the Independent Children's Lawyer upon the expiry of the appeal period. The matter was removed from the pending cases list.

Orders

Orders of the court

1. That the mother have sole parental responsibility for L Khoury, born … 2002, and M Khoury, born … 2005 (“the children”).

2. That the children live with their mother.

3. That the father’s application for an injunction to restrain the mother from relocating from the B area be refused.

4. That the father may communicate with the children by telephone as follows.

(a) Each Saturday at 6pm; and

(b) On each child’s birthday at 6pm

unless the parties otherwise agree in writing. These telephone calls shall be on speaker phone, unless the parties otherwise agree.

5. For the purposes of facilitating Order 4 above, the mother shall facilitate and cause the children to telephone the father at the times specified in Order 4. If the father is unavailable or does not answer the call from the children at that time, no substitute call will be arranged or will occur.

6. While the mother remains in the B area, the children shall spend time with the father for two hours on the first Saturday of each month (unless the parties otherwise agree) supervised by X Service in B.

7. The mother will, if the father continues to make his mailing address available to her, provide the father from time to time with a report about the children’s development and welfare. The mother will also advise him as soon as possible of any serious medical matters relating to the children or any medical treatment they may be undergoing other than for routine childhood illnesses.

8. The mother will authorise and direct any schools the children attend to provide to the father, upon his request and at his expense, copies of the children’s school reports or any other notices that may issue from the school about the children or their education. The mother will provide to the father in writing details of the name and addresses of the school the children are attending.

9. Otherwise all other parenting orders in relation to the children are discharged.

10. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders

11. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

12. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

13. The Independent Children's Lawyer is discharged upon the expiry of the appeal period.

14. The matter is removed from the 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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