MAROU & AZIZ - [2020] FCCA 489

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAROU & AZIZ

[2020] FCCA 489

Catchwords:
FAMILY LAW – Parenting – where there is one subject child – breakdown of relationship between parents – where best interest of the child considered – where mother seeks sole responsibility – where father sought sole parental responsibility – where factors under s.60CC of the Family Law Act 1975 (Cth) are considered – where there is evidence of family violence including a threat of female genital mutilation on the child – presumption in favour of shared parental responsibility rebutted –– held that it is in the child’s best interests that they live with the mother and that the mother have sole parental responsibility – where there should be no contact between the father and the child.

Legislation:

Family Law Act 1975 (Cth), ss.43, 60B, 60CA, 60CC, 61DA, 61DB, 65DAA,

68L

Cases cited:

Dundas & Blake (2013) FLC 93-552

Marvel v Marvel (2010) 43 FamLR 348

M v M [1988] HCA 68

Zavala & Zavala [2019] FCCA 338

Applicant:

MR MAROU

Respondent:

MS AZIZ

File Number:

PAC 913 of 2017

Judgment of:

Judge Humphreys

Hearing dates:

3 February 2020 – 14 February 2020

Date of Last Submission:

14 February 2020

Delivered at:

Parramatta

Delivered on:

6 February 2020

REPRESENTATION

Solicitors for the Applicant:

Ms Haywood (Solicitor Advocate), Legal Aid Parramatta

Counsel for the Respondent:

Mr Schroder

Solicitors for the Respondent:

Kathryn Renshall Lawyers

Counsel for the Independent Children's Lawyer:

Ms Stolier

Solicitors for the Independent Children's Lawyer:

Mark Whelan

ORDERS

All previous Orders for the child X (“X”), born in 2016, are discharged.
The Orders of 3 March 2017, placing X on the airport watch list are discharged and the Court requests the assistance of the Australian Federal Police (“AFP”) in removing her name from the airport watch list.
The mother shall have sole parental responsibility for X.
It is further noted that Order 3 vests in the mother sole parental responsibility for the purposes of the Australian Passports Act 2005 (Cth), such that the mother is, according to Order 1, authorised to obtain a passport or travel document for X to facilitate her travelling overseas without first notifying or obtaining the consent of the father.
X shall live with the mother.
X shall spend no time or communicate with the father.

IT IS NOTED that publication of this judgment under the pseudonym Marou & Aziz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 913 of 2017

MR MAROU

Applicant

And

MS AZIZ

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern parenting matters between the applicant, Mr Marou (“the father”) and the respondent Ms Aziz (“the mother”). The parenting proceedings are in relation to the sole child of the marriage, X (“X”), born in 2016 and currently aged three years.
The matter was heard at the Parramatta Registry of the Federal Circuit Court over 8 days, commencing on Monday 3 February 2020 and concluding on Friday 14…

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 MAROU & AZIZ

Details

AGLC: Marou and Aziz [2020] FCCA 489
Case: [2020] FCCA 489
Decision Date: 6 February 2020

CaseChat Overview and Summary

In the matter of *Marou & Aziz*, heard by Judge Humphreys, the dispute concerned the parenting arrangements for a child, X, following the breakdown of the relationship between her parents. The mother sought sole parental responsibility for X, while the father also sought sole parental responsibility.

The court was required to determine the best interests of the child, considering the factors outlined in section 60CC of the *Family Law Act 1975* (Cth). A key issue was the presence of evidence of family violence, specifically a threat of female genital mutilation directed at the child.

Judge Humphreys found that the presumption in favour of shared parental responsibility was rebutted due to the evidence of family violence. Applying the principles of the *Family Law Act*, the court concluded that it was in X's best interests to live with the mother and for the mother to have sole parental responsibility. Consequently, the court ordered that X shall live with the mother and have no time or communication with the father. Previous orders regarding X, including her placement on an airport watch list, were discharged, and the court requested the Australian Federal Police to remove her name from the list. The mother was granted sole parental responsibility for the purposes of the *Australian Passports Act 2005* (Cth), authorising her to obtain a passport for X to travel overseas without the father's consent.

Orders

Orders of the court

All previous Orders for the child X (“X”), born in 2016, are discharged.

The Orders of 3 March 2017, placing X on the airport watch list are discharged and the Court requests the assistance of the Australian Federal Police (“AFP”) in removing her name from the airport watch list.

The mother shall have sole parental responsibility for X.

It is further noted that Order 3 vests in the mother sole parental responsibility for the purposes of the Australian Passports Act 2005 (Cth), such that the mother is, according to Order 1, authorised to obtain a passport or travel document for X to facilitate her travelling overseas without first notifying or obtaining the consent of the father.

X shall live with the mother.

X shall spend no time or communicate with the father.

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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