Ressam & Benida - [2022] FedCFamC2F 874

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ressam & Benida [2022] FedCFamC2F 874

File number(s): PAC 4744 of 2018

Judgment of: JUDGE OBRADOVIC

Date of judgment: 8 July 2022

Catchwords: FAMILY LAW – Parenting – allegations of family violence – allegations of sexual violence – whether the father is acting in the best interest of the child – whether father has ability to co-parent with the mother – whether mother should have sole parental responsibility for the child – whether father should spend time with the child – child has severe behaviour issues – whether father spending time with the child is causing child’s behavioural issues – mother to have sole parental responsibility – child to spend no time with the father.

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

Cases cited:
Banks & Banks [2015] FamCAFC 36

Browne v Dunn (1894) 6 R 67

Conroy & Penner [2022] FedCFamC1A 39

Hull v Thompson [2001] NSWCA 359

In the Marriage of LC and TC (1998) 23 Fam LR 75

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GR [2010] HCA 4

Poniatowska v Higginbotham [2009] FCA 680

Slater & Light [2011] FamCAFC 1

Taupau v HVAC Constructions (Qld) Pty Ltd [2012] NSWCA 293

Division: Division 2 Family Law

Number of paragraphs: 159

Date of last submission/s: 9 May 2022

Date of hearing: 28, 29, and 30 October 2020, 13, and 14 September 2021, 8 October 2021, 3 November 2021, and 9 May 2022.

Place: Parramatta

Appearing for the Applicant: Mr Shaw (8 October 2021, and 3 November 2021)

Solicitor for the Applicant: Applicant in person (28, 29, and 30 October 2020, and 9 May 2022), Mr Agbugba (13, and 14 September 2021)

Counsel for the Respondent: Ms Windsor

Solicitor for the Respondent: Burridge & Legg Solicitors

Counsel for the Independent Children’ s Lawyer: Mr Ladopolous

Solicitor for the Independent Children’ s Lawyer: Sarah Bevan Family Lawyers
ORDERS

PAC 4744 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR RESSAM

Applicant

AND:
MS BENIDA

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

8 JULY 2022

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother, Ms Benida, have sole parental responsibility for the child, X, born in 2016.
3.The child live with the mother.
4.The child spend no time with the father, Mr Ressam.
5.The father is restrained from:
(a)Approaching the child.
(b)Communicating, or attempting to communicate, with the child.
(c)Inciting any other person to approach or communicate with the child on his behalf.

6.The mother must, in a timely manner, provide the father with:
(a)Updates about significant matters regarding the child’s health and his progress at school;
(b)Information about decisions made by her in the exercise of her sole parental responsibility;
(c)Copies of any relevant reports about the child.

7.The father is a liberty to send the child a card and/or gift at Christmas and on the child’s birthday each year, but…

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 Ressam & Benida

Details

AGLC: Ressam & Benida [2022] FedCFamC2F 874
Case: [2022] FedCFamC2F 874
Decision Date

CaseChat Overview and Summary

This case concerned the care, custody and control of a child, X, born in 2016. The parties have been separated since September 2018. The Court was required to determine the outcome that would be best for X, and in doing so, the Court considered the primary and additional considerations set out in s.60CC of the Family Law Act 1975 (Cth) ("the Act"). The Court found that the mother was a credible witness who gave evidence which was child focused, while the father gave evidence in a manner that was self-focused and obfuscatory. The Court found that the father perpetrated family violence, including sexual violence, towards the mother, and that he engaged in coercive and controlling behaviours. The father had also manipulated X and spoken badly of the mother to him. The Court found that the father’s behaviour towards X was of concern and that X had exhibited concerning behaviours when returned to the mother after spending time with the father. The Court found that X’s behaviours were best explained by the father’s treatment of him, his attitude to the mother and his undermining of X’s relationship with the mother. The Court accepted the opinion of the Family Consultant that the risks to X of continuing to spend time with the father could not be appropriately minimised, even if the time X spent with the father was reduced, supervised, or if X lived with the father and spent time with the mother. The Court found that it was in X’s best interest that he spend no time with the father, and that the mother have sole parental responsibility. The Court therefore made orders that the mother have sole parental responsibility for X, that X live with the mother and that X spend no time with the father.

Orders