Obeid & Mannan - [2022] FedCFamC2F 436

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Obeid & Mannan [2022] FedCFamC2F 436

File number(s): PAC 4625 of 2019

Judgment of: JUDGE STREET

Date of judgment: 20 June 2022

Catchwords: FAMILY LAW – PARENTING – undefended hearing – parenting orders made as requested by respondent mother – Court satisfied proposed orders in best interests of children

Legislation:
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CC, 61C, 61DA, 65DAA

Federal Circuit and Family Court of Australia Act2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.26, 10.27

Cases cited:
A & Z [2006] FamCA 179

Goode & Goode [2006] FamCA 1346

Lancey & Lancey [1994] FamCA 94

Division: Division 2 Family Law

Number of paragraphs: 32

Date of hearing: 28 March 2022

Place: Parramatta

Solicitor for the Applicant: No appearance

Solicitor for the Respondent: Ms Sharma

Solicitor for the Independent Children’s Lawyer: Ms Court
ORDERS

PAC 4625 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR OBEID

Applicant

AND:
MS MANNAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

28 MARCH 2022

THE COURT ORDERS THAT:
1.The matter will proceed as an undefended hearing.
2.The Court makes orders 1 -17 of the Orders in the amended response, attached as ‘Annexure A’.
3.The appointment of the Independent Children's Lawyer be discharged.
4.The Court reserves its reasons for decision, to be published on a later date.

THE COURT NOTES THAT:
1.The parties are excused from attending the listing for publication of the reasons and will be emailed a copy of the reasons once published.

ANNEXURE A – ORDERS SOUGHT IN THE ‘AMENDED RESPONSE TO INITIATING APPLICATION’
1.All Previous orders be discharged.
2.That the Respondent Mother shall have sole parental responsibility for the children, X (dob: 2006), Y (dob: 2012) and Z (dob: 2015) ("the children").
3.That the children live with the Respondent Mother.
4.That Orders 5 and 6 be contingent on the Father's compliance with Orders 7, 12 and 13.
5.That the children Y and Z spend time with the Applicant Father under supervision at the B Contact Service ("B Contact Service") at Suburb C for two hours each alternate Saturday at dates and times as nominated by the Service.
6.That should X express a wish to the Mother to spend time with the Father, the Mother will facilitate X spending supervised time with the Father facilitated by B Contact Service and at such times as his siblings.
7.That the Father shall be responsible for initially making contact to arrange supervision, continuing to engage as required and paying all fees nominated by B Contact Service for the provision of its services.
8.That if the father consistently attends the contact visits for a six (6) month period, and the reports of the visits indicate that the supervised time is positive for the children, after six (6) months of supervised time, the Father shall spend unsupervised time as agreed between the parties in writing,…

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 Obeid & Mannan

Details

AGLC: Obeid & Mannan [2022] FedCFamC2F 436
Case: [2022] FedCFamC2F 436
Decision Date

CaseChat Overview and Summary

In the case of Obeid & Mannan, the Federal Circuit and Family Court of Australia addressed parenting arrangements for three children following the separation of the parents. The Applicant Father, Mr. Obeid, had initiated the proceedings, but subsequently filed a notice of discontinuance, leading to an undefended hearing. The Respondent Mother, Ms. Mannan, sought sole parental responsibility and specific conditions for the children's contact with the Applicant Father. The Court was required to determine whether the proposed parenting orders were in the best interests of the children, as per the Family Law Act 1975 (Cth) and relevant case law.

The Court considered the evidence provided by the Respondent Mother, including affidavits, a family report, and other documentation. It was noted that the Applicant Father had been absent from the children's lives since the separation and had shown little effort to engage with them. The family report highlighted concerns about the Applicant Father's controlling behaviour, which was deemed to constitute family violence, and the risk of harm to the children if they were to spend time with him. The Court found that the presumption of equal shared parental responsibility should be rebutted, as the Applicant Father's conduct posed an unacceptable risk to the children.

The Court concluded that the proposed orders in the Respondent Mother's amended response were in the best interests of the children. These orders included sole parental responsibility for the Respondent Mother, with the children primarily living with her. The Court also ordered supervised contact for the two younger children with the Applicant Father, contingent on him attending contact sessions consistently for six months, engaging with a psychologist, and completing a parenting course. The Court found that these conditions would mitigate the risk of harm to the children while allowing them to maintain a relationship with their father.

In summary, the Court made orders in favour of the Respondent Mother, granting her sole parental responsibility and setting specific conditions for the Applicant Father's contact with the children. The Court was satisfied that these orders were in the best interests of the children, taking into account the evidence and the relevant statutory provisions.

Orders