LAMSAARD & EBRAHIM - [2019] FamCA 934

FAMILY COURT OF AUSTRALIA

LAMSAARD & EBRAHIM

[2019] FamCA 934

FAMILY LAW – CHILDREN – Parenting Orders – International Relocation – Where the child and the father live in Australia – Where the mother works and lives in City S – Where the mother seeks to have the child live with her in City S – child has lived with her father in Australia for four years – Where the father and the Independent Children’s Lawyer oppose relocation – Where the mother’s application to relocate the child’s permanent place of residence is dismissed.

FAMILY LAW – PROPERTY – Property Orders – Application by father to set aside property orders under section 79A of the Family Law Act 1975 (Cth) (“the Act”) – Fathers application to set orders aside successful.

Family Law Act 1975 (Cth), ss 65AA(5), 60B, 60 CC, 60CC(2), 60CC(3), 65DAC 79A

Gebert & Gebert [1990] FamCA 105
Goode v Goode [2006] FamCA 1346
Harris v Caladine (1991) 172 CLR 84
Joubert and Anor & Verhoeven [2018] FamCA 879
Livesy v Jenkins (1995) FLC 92-573
Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-34, (2008) 38 Fam LR 275
Morrison & Morrison (1995) FLC 92-573
Pearce & Pearce [2016] FamCAFC 14
Stanford v Stanford (2012) 247 CLR 108
Waterman & Waterman [2017] FamCAFC 23

APPLICANT:

Mr Lamsaard

RESPONDENT:

Ms Ebrahim

SECOND RESPONDENT:

Ms Abidi

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

2015

DATE DELIVERED:

6 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

14, 15, 16 August, 16 & 17 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lawrence

SOLICITOR FOR THE APPLICANT:

Clinch Long Woodbridge Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Murphy

SOLICITOR FOR THE RESPONDENT:

Swifte Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That all previous parenting orders in relation to the child, A, born in 2011, be discharged.
That the Mother and Father have equal shared parental responsibility for A.
In the event that the Mother continues to live in City S:
(a) A will live with the Father.
(b)A will spend time with the Mother as follows:
(i)During the whole of the New South Wales April school holiday period each year;
(ii)During the first half of the New South Wales July school holiday period each year;
(iii)During the whole of the New South Wales October school holiday period each year;
(iv)During the first half of the New South Wales December/January school holiday period in odd numbered years;
(v)During the second half of the New South Wales December/January school holiday period in even numbered years;
(vi)For up to two consecutive weeks during each school term; and
(vii)At any other time agreed in writing between the parents.
(c)The Father will do all things necessary to facilitate communication between A and the Mother by Skype, telephone or other electronic means on at least three occasions each week.
(d)A will spend time with the…

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.

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Details

AGLC: LAMSAARD & EBRAHIM [2019] FamCA 934
Case: [2019] FamCA 934
Decision Date: 6 December 2019

CaseChat Overview and Summary

This case involved a dispute between a mother and father concerning their child, A, born in 2011. The mother sought to relocate A to live with her in City S, while A had been living with the father in Australia for the preceding four years. The father and the Independent Children’s Lawyer opposed the relocation. The court was also required to consider an application by the father to set aside previous property orders made under section 79A of the *Family Law Act 1975* (Cth), which was successful.

The primary legal issues before the court were whether to permit the international relocation of the child, A, and the appropriate parenting and property orders to be made. Specifically, the court had to determine the best interests of the child in relation to the proposed relocation and whether the previous property orders should be set aside due to circumstances arising since their making.

Henderson J discharged all previous parenting orders and made new orders establishing equal shared parental responsibility for A. The court ordered that A would live with the father, with specific time arrangements for A to spend with the mother, including during school holidays and for up to two consecutive weeks during school terms, with provisions for travel and communication. The court also made detailed orders regarding the facilitation of A's travel between parents, including financial responsibilities and security for overseas travel. The court further ordered that A would not commence spending time with the mother in City S until she turned 10 years old. The previous consent orders made on 12 January 2015 were set aside.

Orders

Orders of the court

That all previous parenting orders in relation to the child, A, born in 2011, be discharged.

That the Mother and Father have equal shared parental responsibility for A.

In the event that the Mother continues to live in City S:

(a) A will live with the Father.

(b) A will spend time with the Mother as follows:

(i) During the whole of the New South Wales April school holiday period each year;

(ii) During the first half of the New South Wales July school holiday period each year;

(iii) During the whole of the New South Wales October school holiday period each year;

(iv) During the first half of the New South Wales December/January school holiday period in odd numbered years;

(v) During the second half of the New South Wales December/January school holiday period in even numbered years;

(vi) For up to two consecutive weeks during each school term; and

(vii) At any other time agreed in writing between the parents.

(c) The Father will do all things necessary to facilitate communication between A and the Mother by Skype, telephone or other electronic means on at least three occasions each week.

(d) A will spend time with the Maternal Grandmother on each alternate weekend during school terms, from 5.30 pm on Thursday until 5 pm on Sunday, unless otherwise agreed between the Father and the Maternal Grandmother.

(e) During periods A is in the Mother’s care pursuant to Order 3(b), the Mother will do all things necessary to facilitate communication between A and the Father by Skype, telephone or other electronic means at least twice per week.

In the event that the Mother lives within a 20 km radius of A’s school:

(a) A will live with the Father from after school Monday until before school Monday in one week, and with the Mother from after school Friday until before school Monday in the other week, alternating from week to week during school terms, unless otherwise agreed in writing between the parents with such arrangement to continue in the June school holidays.

(b) A will spend one half of the Christmas school holiday period with each parent, being the first half with the mother in odd numbered years and the second half with the mother in even numbered years, unless otherwise agreed in writing between the parents.

Unless otherwise agreed in writing between the parents:

(a) For the purposes of Orders 3(b)(iv) and 3(b)(v), A will travel to City S to spend time with the Mother, subject to Orders 11, 12 and 13 below; and

(b) For the purpose of all other periods referred to in Order 3(b) the Mother will travel to Australia to spend time with A.

For the purposes of Orders 3(b) and 4(b), school holiday periods commence on the day immediately after the last day of term and conclude on the Friday immediately before the first day students return to school in the following term.

For the purposes of Orders 3(b)(i), 3(b)(ii) and 3(b)(iii), the Mother will notify the Father in writing at least 28 days prior to her arrival in Sydney and will advise him of the date she proposes to collect A and the date she proposes to return A to the Father’s care.

In the event that the Mother does not intend to spend time with A during a particular school holiday period, she will notify the Father in writing at least 28 days prior to the commencement of the relevant school holiday period.

For the purposes of Order 3(b)(vi):

(a) The Mother will notify the Father in writing at least 14 days prior to her arrival in Sydney and will advise him of the date she proposes to collect A and the date she proposes to return A to the Father’s care; and

(b) The Mother will ensure that A attends school on all school days while she is in the Mother’s care.

10.

For the purposes of Orders 3(b)(iv) and 3(b)(v):

(a) The Mother will book and pay for A’s return air travel between Sydney and City S.

(b) The Mother will provide the Father with a copy of the travel itinerary or e-ticket indicating the flight numbers, departure and arrival dates and times of both A’s flights to and from City S no later than 42 days prior to the proposed date of departure from Sydney.

(c) Unless otherwise agreed in writing between the parents, the Mother will accompany A on all flights to and from City S, or will arrange for the Maternal Grandmother to accompany A.

(d) The Father will deliver A to the Mother (or Maternal Grandmother) at Sydney International Airport three hours prior to the scheduled departure time for her flight to City S.

(e) The Mother will return A to the Father at Sydney International Airport at the conclusion of A’s time with her in accordance with these Orders, or will arrange for the Maternal Grandmother to do so.

11.

That A will not commence spending time with the Mother in City S until she is aged 10.

12.

During the time A spends with the Mother in the December 2019 school holiday period, the Mother is at liberty to travel with A to a Hague Convention country, and in that event, the same arrangements as in Order 10 will apply.

13.

That, for a period of four years from the date of these Orders, the Mother (or her agent) is permitted to remove A from the Commonwealth of Australia for the purposes of overseas travel in accordance with these Orders, provided that no later than 14 days prior to any period of overseas travel, the Mother deposits the sum of AUD $10,000 to the trust account of Clinch Long Woodbridge Lawyers as security for A’s return to Australia, such funds to be released to the Father in the event that A is not returned to Australia at the conclusion of her scheduled time with the Mother.

14.

Upon the expiration of Order 13, the Mother (or her agent) is permitted to remove A from the Commonwealth of Australia for the purposes of overseas travel provided the Mother notifies the Father in writing of her intention to travel at least 42 days prior to departure and provides the Father with details of destination(s); dates of departure and arrival, flight numbers and contact details while overseas.

15.

The Father (or his agent) is permitted to remove A from the Commonwealth of Australia for the purposes of overseas travel provided the Father notifies the Mother in writing of his intention to travel at least 42 days prior to departure and provides the Mother with details of destination(s); dates of departure and arrival, flight numbers and contact details while overseas.

16.

That the Father hold A’s passport other than during periods of time when A is travelling overseas with the Mother.

17.

That the Australia Federal Police be requested to remove the name of the child, A (also known as A[A]), born in 2011, from the Airport Watch List forthwith.

18.

That each parent notify the other as soon as practicable in the event that A suffers any significant illness or injury, or is hospitalised whilst in that parent’s care.

19.

That each parent is at liberty to obtain information from A’s school including copies of school reports, newsletters and school photograph order forms.

20.

That each parent is at liberty to attend functions and events at A’s school to which parents are generally invited.

21.

The parties be permitted to change the name of the child A as registered on her Birth Certificate to A, such that such change of name be registered at the Registry of Births, Deaths and Marriages by the parties and from this day the child A be known on all formal records as A, which shall accord with the first name by which she is presently known and pursuant to Orders of this Court.

22.

The Consent Orders made by the Court on 12 January 2015 are hereby set aside.

23.

Mr B is hereby joined as a 2nd respondent to these proceedings and is to file a notice of address for service within seven days of the date of delivery of this judgment.

24.

The proceedings are to be listed for directions hearing before the docket Registrar the purposes of the parties being directed to file material to enable a Conciliation Conference to be held.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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