Reema & Baboor

Case [2021] FedCFamC1A 19

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Reema & Baboor [2021] FedCFamC1A 19

Appeal from: Reema & Baboor [2020] FamCA 432
Appeal number(s): EAA 88 of 2020
File number(s): PAC 1995 of 2018
Judgment of: STRICKLAND, WATTS & TREE JJ
Date of judgment: 24 September 2021
Catchwords:

FAMILY LAW – APPEAL – REFUSAL TO RECUSE – Where the primary judge had the power pursuant to s 69ZR(1) of the Family Law Act 1975 (Cth) to make any findings of fact, determine any issues arising in the proceedings, and make the orders she did – Where by exercising that power pursuant to s 69ZR(3) her Honour was not then required to disqualify herself from further hearing the proceedings – Where apprehended bias is not demonstrated – Where none of the grounds of appeal have merit – Appeal dismissed.

COSTS – Where the respondent sought her costs on a party/party basis – Where that application was not opposed – Costs ordered in the sum as sought by the respondent.

Legislation: Family Law Act 1975 (Cth) s 69ZR
Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

AGF and LLS (Apprehension of bias) (2005) FLC 93-210; [2005] FamCA 13

Hillier & Wootton (2013) FLC 93-526; [2013] FamCAFC 11

Jess & Jess [2021] FamCAFC 159

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

Number of paragraphs: 69
Date of hearing: 13 April 2021
Place: Sydney
Counsel for the Appellant: Mr Dickson QC
Solicitor for the Appellant: York Law
Counsel for the First Respondent: Ms Cantrall
Solicitor for the First Respondent: Walter & Elliot Family Lawyers
Solicitor for the Second and Third Respondents: Did not participate in the appeal
Solicitor for the Independent Children's Lawyer: Did not participate in the appeal

ORDERS

EAA 88 of 2020
PAC 1995 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
BETWEEN:

MR REEMA

Appellant
AND:

MS BABOOR

First Respondent

MS REEMA SNR
Second Respondent

MR REEMA SNR
Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

STRICKLAND, WATTS & TREE JJ

DATE OF ORDER:

24 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant father pay the costs of the respondent mother of and incidental to the appeal fixed in the sum of $9,480.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by…

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Reema & Baboor [2021] FedCFamC1A 19
Case
[2021] FedCFamC1A 19
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Reema, the mother, appealed a decision made by Justice Mortimer concerning parenting orders for their child, X. The father, Baboor, had initiated proceedings seeking interim and final parenting orders. The mother opposed these proceedings and filed a response seeking parenting and property settlement orders, including sole parental responsibility for the child and no contact with the father or paternal grandparents. The mother alleged severe family violence and abuse by the father, which he denied. The primary judge dismissed the father's appeal, finding no merit in the grounds presented. The court examined the evidence and circumstances, concluding that the appeal did not meet the necessary criteria for success.

The legal issues before the court involved the interpretation and application of the Family Law Act 1975, particularly regarding the best interests of the child and the alleged family violence. The court needed to determine whether the primary judge's findings were correct and whether the appeal grounds provided sufficient reason to overturn the decision. The primary judge found the mother's allegations credible and supported by evidence, which the appeal failed to challenge effectively. The court concluded that the primary judge's assessment of the evidence and the best interests of the child was sound, and therefore, the appeal did not present a valid basis for a different outcome.

The court's reasoning focused on the credibility of the mother's testimony and the evidence supporting her allegations of family violence. The primary judge had ample reason to believe the mother's account and to grant her the requested parenting orders. The appeal did not provide new evidence or arguments that could change this assessment. The court found that the appeal lacked merit, and as such, the original decision stood. The father's arguments did not successfully challenge the primary judge's findings or the application of the law. The court dismissed the appeal and upheld the original decision in favor of the mother.

The final orders of the court included dismissing the father's appeal and upholding the primary judge's decision. Additionally, an order for costs was made in favor of the mother, amounting to $9,480 on a party/party basis. This decision underscores the importance of credible evidence in family law proceedings and the court's role in ensuring the best interests of the child are prioritised.

Orders

Orders of the court

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Background

Background to the litigation

As it happens though, it is unnecessary to address this issue because we have found no merit in the appeal, and leave to appeal would not have been granted. In these circumstances we simply propose to dismiss the appeal, for the following reasons.BACKGROUND The father is currently 44 years of age, and the mother is currently 36 years of age. The parents began cohabiting in Australia in about 2009 and were married in January 2011. The only child of their relationship, their daughter X (“the child”), was born in 2015 in Australia. The parents lived in the home of the paternal grandparents in Sydney from about 2015 onwards. The paternal grandparents played a significant role in caring for the child during this time. The mother contends in the parenting proceedings that throughout the relationship the father perpetrated family violence against her, which violence escalated to severe physical and sexual abuse. She further contends that the paternal grandparents turned a blind eye to the father’s behaviour, and to some extent engaged in coercive conduct towards the mother while they lived together. The mother also alleges that subsequent to the birth of the child, the father behaved in an inappropriate manner towards the child, such as sleeping nude with herself and the child, refusing to purchase a cot, and forcing the mother to have sexual intercourse with him while the child was with them in the bed. Specifically the mother alleges that there was a serious assault over two days in December 2017 in the paternal grandparents’ home. She deposes that the father physically assaulted her, including by choking her, engaged in sexual abuse and particularly degrading sexual conduct towards her, and that she experienced a physical injury as a result of these assaults. The mother also alleges that she was crying and screaming at times during the events and the paternal grandparents must have been aware of the assault. Indeed, she says that the paternal grandmother removed the child from the parents at one stage to allow the assault to continue. The father denies any of the violence alleged by the mother and contends that he poses no risk of harm to the child. The parents separated in early May 2018 when the mother left the paternal grandparents’ home with the child and attended a police station. The mother reported to police that she had been the victim of significant family violence allegedly perpetrated by the father. A provisional Apprehended Domestic Violence Order (“ADVO”) in favour of the mother against the father was made on the same day. The father and paternal grandparents have spent no time with the child since the parents separated. On 8 May 2018, the father commenced proceedings in the Federal Circuit Court of Australia seeking interim and final parenting orders in relation to the child. The mother filed a Response seeking parenting and property settlement orders. The mother sought interim parenting orders that she have sole parental responsibility for the child, that the child live with her and spend no time with the father or the paternal grandparents. The father sought interim parenting orders that he spend supervised time with the child at a contact centre for two hours each Saturday.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances Ground 1 also has no merit.CONCLUSION Having found no merit in any of the grounds the appeal must be dismissed.COSTS In the event that the appeal was dismissed, the mother sought an order for costs in the amount of $9,480 on a party/party basis. The father’s Queen’s Counsel indicated that he could not oppose that, and accordingly there will be an order for costs as sought by the mother.

Ratio Decidendi

Legal Principle Established

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