Magomedov & Borchard - [2024] FedCFamC1F 507

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Magomedov & Borchard [2024] FedCFamC1F 507

File number(s): NCC 3232 of 2018

Judgment of: SMITH J

Date of judgment: 30 July 2024

Catchwords:
FAMILY LAW – CHILDREN – Parenting Orders – Best interest of the child – Where the mother alleges persistent family violence perpetrated by father – Where the mother alleges the father had a significant history of family violence – Where the mother alleges the father admitted to committing family violence during counselling sessions – Where the father denies the mother’s allegations of family violence against the mother or prior partners – Where the father alleges the mother made him attend counselling to create evidence of family violence and denies making concession – Where clinical psychologist counsellor’s contemporaneous notes and oral evidence confirm father’s concessions – Where the father alleges the mother fabricated the history of family violence for visa purposes – Where there is significant contemporaneous evidence of complaint – Where the father’s alcohol abuse was a key issue at trial – Where the mother’s mental health was a key issue at trial – Where the mother’s mental health impacted her ability to comply with Court Orders.

FAMILY LAW – PARENTING - Findings – Where both parties credibility was in question – Where both parties evidence to be treated with caution – Where consideration is given to objective contemporaneous evidence – Where the father engaged in a persistent pattern of family violence during and post relationship – Where the father engaged in alcohol abuse – Where the father made concessions to a clinical psychologist – Where the father denied issues of alcohol use and family violence in cross examination – Where the mother’s mental health was exacerbated by the father’s behaviours – Where the father has limited prospect of change to behaviours which he denies – Where the father poses an unacceptable risk of physical and psychological harm to the child.

FAMILY LAW – PARENTING – Orders – Mother to have sole parental responsibility – Child to live with mother – Child to spend no time and have no communication with father – ancillary orders.

Legislation:
Evidence Act 1995 (Cth) Pts 3.10, 4.1, ss 128, 140

Family Law Act 1975 (Cth) Pts II, VII, XV, ss 10C, 10E, 60CA, 60CC, 65AA, 117.

Uniform Civil Procedure Rules 2005 (NSW) Sch 7

Cases cited:
B & B (1993) FLC 92-357

CDJ v VAJ (1998) 197 CLR 172

Isles & Nelissen [2022] FedCFamC1A 97

Russell v Close [1993] FamCA 62

Division: Division 1 First Instance

Number of paragraphs: 387

Date of hearing: 14-16 June 2022, 22-24 November 2022, 13-14 July 2023

Place: Sydney (14-16 June 2022), Newcastle (22-24 November 2022, 13-14 July 2023) by Microsoft Teams

Counsel for the Applicant: Mr Mooney

Solicitor for the Applicant: Manning Valley Legal and Conveyancing

Counsel for the Respondent: Ms Bateman

Solicitor for the Respondent: Banga Legal

Counsel for the Independent Children's Lawyer: Mr Guyder

Solicitor for the Independent Children's Lawyer: Krstina Wooi Lawyer (14-16…

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: Magomedov & Borchard [2024] FedCFamC1F 507
Case: [2024] FedCFamC1F 507
Decision Date: 30 July 2024

CaseChat Overview and Summary

In the case of Magomedov & Borchard, the Federal Circuit and Family Court of Australia was tasked with determining parenting orders for a child born in 2018. The mother, Ms Borchard, alleged that the father, Mr Magomedov, had engaged in persistent family violence against her, including a serious incident in mid-2018. She also alleged that he had a history of family violence against her and prior partners. The father denied these allegations and claimed that the mother fabricated the history of family violence for visa purposes. The court was required to decide on the credibility of both parties and the objective evidence presented, considering the best interests of the child.

The court found that the father's evidence was inconsistent with his admissions during counselling sessions, as confirmed by the contemporaneous notes and oral evidence of the clinical psychologist counsellor. The court also found that the father's alcohol abuse was a significant issue at trial, and his denial of alcohol use and family violence in cross-examination was inconsistent with the contemporaneous evidence. The mother's mental health was also a key issue at trial, as it was exacerbated by the father's behaviours. The court found that the father had limited prospect of changing his behaviours, which he denied, and that he posed an unacceptable risk of physical and psychological harm to the child.

The court concluded that the best interests of the child required that the child live with the mother, who would have sole parental responsibility for the child, and that the child shall spend no time and have no communication with the father. The court also made ancillary orders regarding the child's passport, travel, and the removal of the child's name from the Family Law Watchlist. The court ordered that a copy of the orders and reasons for judgment be provided to relevant parties, including the Independent Children's Lawyer, Court Children's Service, and the Court Child Expert / Family Report Writer.

The final orders included that the mother have sole parental responsibility for the child, the child to live with the mother, and the child to spend no time and have no communication with the father. Additionally, the mother was authorised to apply and obtain an Australian passport for the child, and the father's consent to such passport was dispensed with. The court also requested that the Australian Federal Police remove the child's name from the Family Law Watchlist. Each party was to bear their own costs unless an application for costs was filed in accordance with the Rules.

Orders

Orders of the court

NCC 3232 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MAGOMEDOV

Applicant

AND:

MS BORCHARD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

30 JULY 2024

THE COURT ORDERS THAT:

1. Ms Borchard (born 1980) (“the mother”) is to have sole parental responsibility for making decisions about the major long term issues concerning X (born 2018) (“the child”), including the care, welfare and development of the child. These issues include but are not limited to the child’s: education; religious and cultural upbringing; health; name; and any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent, or for the parties to comply with these orders.

2. The child shall live with the mother.

3. The child shall spend no time and have no communication with Mr Magomedov (born 1978) (“the father”).

4. The mother have sole parental responsibility in respect of the child in respect of any application for a passport and in any travel outside the Commonwealth of Australia.

5. The Mother be authorised to apply and forthwith obtain an Australian passport for the child so as to enable her to travel in and out of the Commonwealth of Australia.

6. The consent of the father to the issuing of such an Australian passport for the Child be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.

7. The child be permitted to depart the Commonwealth of Australia.

AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the name of the said child from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.

8. A copy of these Orders, but not reasons, may be given to any school or similar organisation attended upon by the child from time to time.

9. A copy of these Orders and Reasons for Judgment may be given to Dr B, and to any medical / psychological or allied health practice attended by the mother or the child from time to time.

10. A copy of these Orders and Reasons for Judgment be provided to Court Children’s Service and the Court Child Expert / Family Report Writer.

11. If any party, including the Independent Childrens Lawyer, seeks to make an application in respect of costs they are to file an Application in accordance with the Rules, otherwise each party shall bear their own costs.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The orders that must follow, and which I enter, are that the child live with the mother, who will have sole parental responsibility for the child, and that the child shall spend no time and have no communication with the father.SELECTED BACKGROUND The mother alleges a serious incident of family violence occurred in mid-2018, involving a tool. The mother complained to police and a few days later the father was arrested and charged with an offence. An interim AVO was made for the protection of the mother.[9] The parties then separated.[9] Mother’s trial affidavit filed 20 May 2021 at [121]-[124], Annexure O. Following this, the father did not see the child until 28 September 2018.[10][10] Transcript 15 June 2022, p.127 lines 11-14. On 6 August 2018, the father wrote to Commonwealth migration authorities revoking his support for the mother’s visa application, and advising the child would be safe in his care.[11][11] Exhibit ICL 4. On 16 October 2018, the father commenced these proceedings seeking orders transitioning the child to live with him based on developmental milestones and seeking expedition prior to any deportation of the mother from Australia, with alternative orders should the mother secure permanent residency. On 22 November 2018, the mother in her Response sought orders for sole parental responsibility, live with, and no time orders, as well as orders for the removal of the child’s middle name, and for international travel. That day the Court made interim live with orders for the mother, with a restraint on international travel and associated Airport Watch List order, and ordered the father to undergo Carbohydrate Deficient Transferrin (‘CDT’) testing for alcohol use. The father’s criminal matter first came before a Court in mid-2018 and the criminal trial at Town DD Local Court ran in late 2018, early 2019 and concluded mid-2019 with a finding of not guilty.[12][12] Exhibit B, MFI 5 p.58; Exhibit 4 p.65 (Transcript Town DD Local Court dated mid-2019); ICL 1, MFI 9 p.52. On 21 June 2019, there were consent interim orders for the child to spend time with the father through a supervised contact centre and for hair follicle testing for the father. On 7 August 2019, a Child Dispute Conference occurred, and a Memorandum was prepared. On 21 August 2019, an Independent Children’s Lawyer was appointed and further orders for the father to undergo CDT testing were made. On 4 November 2019, following a contested interim hearing on 24 October 2019, the Court made interim orders for the child to spend unsupervised time with the father progressing to 10.00 am to 4.00 pm each Friday and Sunday thereafter, with further orders for hair follicle testing and a restraint on the father from drinking alcohol for 24 hours prior to, or during time with the child. At the time of the Family Report interviews on 30 September 2020 the child had generally been spending time that time with the father as ordered.[13][13] Family Report dated 16 November 2020 at [3], [9].

Evidence

Evidence Before The Court

Upon separation, the mother stayed in a hotel for one night and then in a refuge for nine weeks. She was provided support accommodation in City Q for a year, before obtaining private accommodation.[16] The mother expressed a fear of the father finding out where she lives,[17] and maintained at trial that she did not want to disclose her address to the court.[18]TRIAL AND EVIDENCE[16] Mother’s trial affidavit filed 20 May 2021 at [142]. [17] Mother’s affidavit filed 25 May 2022 at [39]. [18] Transcript 16 June 2022, p.255 lines 30-41. First sitting 14-16 June 2022 This matter was listed for a five-day final hearing commencing 14 June 2022. All parties were legally represented, including by counsel. The father provided a Court Book in two parts; part 1 of 216 pdf pages (MFI 1) and part 2 of 29 pdf pages (MFI 2). The father relied upon a Submission Bundle and Case Outline dated 13 June 2022 (MFI 6). The father relied upon the following documents at final hearing: (1)Amended Initiating Application filed 9 April 2021, noting his proposed minute of order was amended and annexed to his case outline;(2)Notice of Risk filed 16 October 2018; (3)Trial Affidavit filed 27 April 2021; (4)Updating Affidavit filed 24 May 2022;(5)Affidavit of the father’s current partner Ms C, filed 24 May 2022;(6)Affidavit of the paternal grandmother Ms R, filed 26 April 2021;(7)Affidavit of the paternal grandfather Mr S, filed 26 April 2021;(8)Affidavit of a friend Mr T, filed 23 April 2021;(9)Affidavit of a friend Ms U, filed 23 April 2021. The mother provided a Court Book in two parts; part 1 of 401 pdf pages (MFI 3) and part 2 of 100 pdf landscape pages (MFI 4), and a further tender bundle of 344 pdf pages (MFI 5). The mother relied upon a Submissions Bundle and Case Outline, dated 10 June 2022 (MFI 7). The mother relied upon the following documents at final hearing:(1)Response filed 22 November 2018;(2)Notice of Risk filed 22 November 2018; (3)Trial Affidavit filed 20 May 2021; (4)Updating Affidavit filed 25 May 2022;(5)Affidavit of the mother’s treating clinical psychologist Dr B filed 24 May 2021; (6)Affidavit of the mother’s Family Support Worker Ms V, filed 20 May 2021;(7)Affidavit of a friend Ms W, filed 20 May 2021;(8)Affidavit of a friend Ms Y, filed 20 May 2021. The ICL’s Court Book was in two parts; part 1 of 141 pdf pages (MFI 9) and part 2 of 141 pdf pages (MFI 10). The ICL relied upon the following documents at final hearing:(1)Case Outline of the Independent Children’s Lawyer dated 20 May 2021(2)The Child Dispute Conference Memorandum prepared by Ms Z on 7 August 2019;(3)Family Report prepared by Ms Z on 16 November 2020,(4)Tender bundle, to the extent to which documents were specifically tendered. The Child Dispute Conference Memorandum and Family Report were not entered into evidence pending the outcome of inquiries that were to be made by counsel for the ICL. Consequently, they were not given exhibit markings at that time. Ultimately no issue was taken. The expert was called and adopted these reports. She was cross examined on them. They were not given exhibit markings at that time due to an oversight. The reports were treated as the expert’s oral evidence by all parties and the Court throughout the trial and in submissions. Having been not been objected to, and then adopted by the expert, I treat these reports as being the expert’s evidence in chief despite the formal absence of exhibit markings.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	NCC 3232 of 2018
Judgment of:	SMITH J
Date of judgment:	30 July 2024
Catchwords:	FAMILY LAW – CHILDREN – Parenting Orders – Best interest of the child – Where the mother alleges persistent family violence perpetrated by father – Where the mother alleges the father had a significant history of family violence – Where the mother alleges the father admitted to committing family violence during counselling sessions – Where the father denies the mother’s allegations of family violence against the mother or prior partners – Where the father alleges the mother made him attend counselling to create evidence of family violence and denies making concession – Where clinical psychologist counsellor’s contemporaneous notes and oral evidence confirm father’s concessions – Where the father alleges the mother fabricated the history of family violence for visa purposes – Where there is significant contemporaneous evidence of complaint – Where the father’s alcohol abuse was a key issue at trial – Where the mother’s mental health was a key issue at trial – Where the mother’s mental health impacted her ability to comply with Court Orders. FAMILY LAW – PARENTING - Findings – Where both parties credibility was in question – Where both parties evidence to be treated with caution – Where consideration is given to objective contemporaneous evidence – Where the father engaged in a persistent pattern of family violence during and post relationship – Where the father engaged in alcohol abuse – Where the father made concessions to a clinical psychologist – Where the father denied issues of alcohol use and family violence in cross examination – Where the mother’s mental health was exacerbated by the father’s behaviours – Where the father has limited prospect of change to behaviours which he denies – Where the father poses an unacceptable risk of physical and psychological harm to the child. FAMILY LAW – PARENTING – Orders – Mother to have sole parental responsibility – Child to live with mother – Child to spend no time and have no communication with father – ancillary orders.
Legislation:	Evidence Act 1995 (Cth) Pts 3.10, 4.1, ss 128, 140 Family Law Act 1975 (Cth) Pts II, VII, XV, ss 10C, 10E, 60CA, 60CC, 65AA, 117. Uniform Civil Procedure Rules 2005 (NSW) Sch 7
Cases cited:	B & B (1993) FLC 92-357 CDJ v VAJ (1998) 197 CLR 172 Isles & Nelissen [2022] FedCFamC1A 97 Russell v Close [1993] FamCA 62
Division:	Division 1 First Instance
Number of paragraphs:	387
Date of hearing:	14-16 June 2022, 22-24 November 2022, 13-14 July 2023
Place:	Sydney (14-16 June 2022), Newcastle (22-24 November 2022, 13-14 July 2023) by Microsoft Teams
Counsel for the Applicant:	Mr Mooney
Solicitor for the Applicant:	Manning Valley Legal and Conveyancing
Counsel for the Respondent:	Ms Bateman
Solicitor for the Respondent:	Banga Legal
Counsel for the Independent Children's Lawyer:	Mr Guyder
Solicitor for the Independent Children's Lawyer:	Krstina Wooi Lawyer (14-16…