Reema & Baboor - [2018] FamCA 886

FAMILY COURT OF AUSTRALIA

REEMA & BABOOR AND ORS

[2018] FamCA 886

FAMILY LAW – CHILDREN – Interim parenting – best interests of the child - where the mother alleges that the father and the paternal grandparents pose an unacceptable risk of harm to the child – where orders are made for the father and paternal grandparents to spend no time with the child – where it is alleged that the father has perpetrated serious physical and sexual violence on the mother and a previous intimate partner – where it is alleged that the child has been exposed to family violence – where it is alleged that the paternal grandparents were aware of the family violence and did not act protectively.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, s65D

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Reema

FIRST RESPONDENT:

Ms Baboor

SECOND RESPONDENT:

Ms Reema Snr

THIRD RESPONDENT:	Mr Reema Snr
INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW Parramatta Family Law

FILE NUMBER:

PAC

1995

2018

DATE DELIVERED:

1 November 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

17 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Coleman SC

SOLICITOR FOR THE APPLICANT:

Amg Law Firm

COUNSEL FOR THE FIRST RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE FIRST RESPONDENT:	Walter & Elliot Family Lawyers
COUNSEL FOR THE 2^ND AND 3^RD RESPONDENT:	Mr Othen

SOLICITOR FOR 2^ND AND 3^RD RESPONDENT:

Mark Brown & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

PENDING FURTHER ORDER

That the mother have sole parental responsibility for X (“the child”), born … 2015.
That the child live with the mother.
That the child spend no time with the father or paternal grandparents.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reema & Baboor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1995 of 2018

Mr Reema

Applicant

And

Ms Baboor

First Respondent

And

Ms Reema Snr

Second Respondent

AND

Mr Reema Snr

Third Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the three year old daughter (“the child”) of Mr Reema (“the father”) and Ms Baboor (“the mother”) and granddaughter of Ms…

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 Reema & Baboor

Details

AGLC: Reema & Baboor [2018] FamCA 886
Case: [2018] FamCA 886
Decision Date: 1 November 2018

CaseChat Overview and Summary

This matter concerned an application by Reema (the applicant) seeking to vary an order made by Hannam J on 15 December 2023, which had dismissed her application for an order for possession of a property. Baboor (the respondent) was the registered proprietor of the property and had entered into a lease agreement with the applicant. The applicant sought possession of the property on the basis that the respondent had breached the terms of the lease agreement. The court was required to determine whether the previous order dismissing the applicant's possession claim should be varied or set aside.

The central legal issue before Hannam J was whether the applicant had established a sufficient basis to justify varying or setting aside the earlier order. This involved considering the principles governing the variation or setting aside of court orders, particularly in circumstances where new evidence or a significant change in circumstances might be alleged. The court also had to assess whether the applicant's arguments regarding the alleged breaches of the lease agreement were sufficiently compelling to warrant revisiting the dismissed possession claim.

Hannam J found that the applicant had failed to demonstrate any error in the original decision or any new circumstances that would justify varying or setting aside the order for possession. The judge noted that the applicant had not presented any new evidence that was not available at the time of the original hearing, nor had she established any material change in circumstances. Consequently, the application to vary the order was dismissed.

Orders