FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Naderi & Wakim (No 3) [2023] FedCFamC1F 479
File number(s): SYC 7996 of 2021 Judgment of: SCHONELL J Date of judgment: 14 June 2023 Catchwords: FAMILY LAW – PARENTING – Interim orders – Where the mother and children reside in Australia and the father resides in Country B – Where the mother sought sole parental responsibility and for the children to live with her – Where the father sought equal shared responsibility and for the children to visit him twice a year in Country B – Where there is a risk the children will not be returned – Where there is no need to make an order for parental responsibility at this stage – Order made for the children to live with the mother.
FAMILY LAW – FINANCIAL – Where mother sought for the father to provide her with funds to meet her costs of the litigation – Where she sought an order for a lump sum or a dollar for dollar order – Dollar for dollar order made.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61C, 69ZL, 117 Cases cited: Adamson & Adamson [2018] FamCA 523
Atkins & Hunt and Ors (2018) 57 Fam LR 128; [2018] FamCA 14
Charisteas& Charisteas (2022) FLC 94-109; [2022] FedCFamC1A 160
DeLuca & Farnham & Anor [2019] FamCAFC 100
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Kuebler & Kuebler (1978) FLC 90-434; [1978] FamCA 26
Line v Line (1997) FLC 92-729; [1996] FamCA 145
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 FamLR 123; [2005] FamCA 158
Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144
Selena & Montez and Ors [2017] FamCA 583
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 106 Date of last submissions: 7 June 2023 Date of hearing: 12 May 2023 Place: Sydney Counsel for the Applicant: Mr Cummings SC Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondent: Mr Richardson SC Solicitor for the Respondent: Barkus Doolan Winning The Second Respondent Did not participate ORDERS
SYC 7996 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NADERI
Applicant
AND: MR WAKIM
Respondent
MR N WAKIM
Second Respondent
order made by:
SCHONELL J
DATE OF ORDER:
14 JUNE 2023
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The applicant mother, Ms Naderi, born 1977 (“the mother”) and the respondent father, Mr Wakim, born 1972 (also known as Mr Daouk) (“the father”), their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children, Y Wakim born 2006 (also known as…
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- AGLC
- Naderi & Wakim (No 3) [2023] FedCFamC1F 479
- Case
- [2023] FedCFamC1F 479
- Decision Date
CaseChat Overview and Summary
The legal issues that the court needed to address included the source and extent of the court’s power to make a dollar-for-dollar order, the appropriateness of such an order in the circumstances, and the best interests of the children concerning their residence and contact with the father. The court also needed to consider the risk of the children not returning to Australia if they were permitted to travel overseas with the father.
The court determined that the mother had a legitimate need for the funds she sought, and that making a dollar-for-dollar order was just. It was found that the mother was the primary carer of the children and had a significant role in their welfare and health care. The court concluded that permitting the children to travel overseas with the father would expose them to a risk of psychological harm, particularly in the case of the youngest child who required ongoing medical care. The court was satisfied that the children's best interests were served by remaining with the mother in Australia. Consequently, the court ordered that the children live with the mother, that they be placed on the Watchlist, and made a dollar-for-dollar order in favour of the mother.
In conclusion, the court issued orders that the children reside with the mother in Australia, that they be placed on the Watchlist, and that a dollar-for-dollar order be made in favour of the mother.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.PRIMARY AND ADDITIONAL CONSIDERATIONS In applying the primary considerations, the benefit to the children of having a meaningful relationship with both parents is subservient to the need to protect the child from the harms identified in the subsection. A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439). Both parties contend that it is important that the children have a meaningful relationship with the other parent. The children currently live in Australia and the father has not visited them since August 2021. The mother is not opposed to the children spending time with the father in Australia. It is entirely within his power to ensure he maintains his relationship with them by visiting them in Australia. He proffers no reasons as to why he cannot come to Australia to maintain his relationship with them even for a short trip nor why their best interests are served by travelling overseas as unaccompanied minors. In relation to the father’s application to have the children travel overseas, the mother contends that there is a risk that the children will not be returned. If that happened, I am satisfied it would expose both children to a risk of psychological harm in that they would be separated from their primary carer as well as the medical and health professionals who are involved in their care. If that were to happen, there is a risk that Z would not receive the medical care that he needs given what is said to be the father’s attitude to his diagnosis of ADHD. The father contends that Z has already suffered trauma (father’s affidavit, paragraph 184). If he were separated from his primary carer as a consequence of a non-return to Australia, then there is a possibility that the trauma he has already allegedly suffered (according to the father) would be exacerbated. An order permitting a child to leave the jurisdiction is clearly a parenting order. Authorities such as Kuebler & Kuebler (1978) FLC 90-434, Line v Line (1997) FLC 92-729 and DeLuca & Farnham & Anor [2019] FamCAFC 100, identify a number of factors that are relevant to the determination that I am required to make in assessing the risk of return of the children to Australia. Country B is not a convention country and the father has not proposed any bond to secure the children’s return.