SLEIMAN & GANIM - [2020] FCCA 3309

FEDERAL CIRCUIT COURT OF AUSTRALIA

SLEIMAN & GANIM

[2020] FCCA 3309

Catchwords:
FAMILY LAW – Parenting – future care arrangements for young child – circumstances where child has no lived memory or experience of Father – orders seeking no time with the Father – allegations of risk – concerns of Mother that Father will force or influence child to convert to Islam – fears Father may attempt to take child overseas – fears Father may influence child’s political and ideological views – no time or communication between child and Father for majority of child’s life – where significant weight may be placed on child’s views in not wishing to develop relationship with Father – best interests –meaningful involvement of both parent’s in child’s life to extent consistent with best interests of the child – summary disposal of proceedings in circumstances where hearing of the matter would not be in the child’ best interests.

COSTS – Application for Costs by the independent children’s lawyer – determination of hardship pursuant to s 117(4)(b) – where a party has been wholly unsuccessful – where Order for costs under section 117(2A) is not deemed just.

Legislation:

Family Law Act 1975 (Cth), ss.60B; 60CA; 60CC; 60I; 117
Federal Circuit Court Rules 2001 (Cth)

U & U [2002] FLC 93-112
Gordon & Gordon [2015] FamCA 616
Webster v Lampard[1993] HCA 57
Harrison & Woollard (1995) FLC 92-598
Re R Children’s Wishes [2000] FamCA 43
Penfold & Penfold [1980] HCA 4
Re JJT Ex Parte Victoria Legal Aid [1998] FLC 92-812

Other sources:

Joe Harman, ‘The Intersection of Family Violence and Family Dispute Resolution: Implications for Evidence Gathering and Mediation Confidentiality’ (2019) 33(1) Australian Journal of Family Law 1

Hague Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, Hague XXVII (entered into force 1 December 1983)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Applicant:

MR SLEIMAN

Respondent:

MS GANIM

File Number:

PAC 4654 of 2019

Judgment of:

Judge Harman

Hearing date:

1 May 2020

Date of Last Submission:

1 May 2020

Delivered at:

Parramatta

Delivered on:

1 May 2020

REPRESENTATION

Solicitors for the Applicant:

Mr P. Morris of Circle Bridge Legal

Solicitors for the Respondent:

Mr S. Kassem of FutureLegal Pty Ltd

Solicitors for the Independent Children’s Lawyer:

Ms C. Hernandez of Legal Aid NSW

ORDERS

That the Applicant Mother have sole parental responsibility of the child, X born on 2007 (“Child”).
That the Children live with the Applicant Mother.
The child to spend no time with the father.
That pursuant to section 68B of the Family Law Act 1975 (Cth), the Respondent Father be restrained from approaching or contacting the Applicant Mother and/or child and engaging third parties to approach and/or contact the Applicant Mother and/or child.
That pursuant to section 11 of the Australian Passports Act 2005 (Cth), the Minister issues an Australian passport in the name of X Shkhayer without the…

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 SLEIMAN & GANIM

Details

AGLC: SLEIMAN & GANIM [2020] FCCA 3309
Case: [2020] FCCA 3309
Decision Date: 1 May 2020

CaseChat Overview and Summary

In the matter of *Sleiman & Ganim*, heard by Judge Harman, the dispute concerned the future care arrangements for a young child, X. The Applicant Mother sought orders for sole parental responsibility, that the child live with her, and that the child spend no time with the Respondent Father. The Mother's application was predicated on significant concerns regarding the Father's potential influence on the child's religious, political, and ideological views, as well as fears that the Father might attempt to take the child overseas. Crucially, the child had experienced no meaningful time or communication with the Father for the majority of their life.

The court was required to determine the best interests of the child in circumstances where there was a significant lack of a relationship between the child and the Father, and where the child had no lived memory or experience of the Father. This involved considering the weight to be given to the child's views, particularly in light of their expressed reluctance to develop a relationship with the Father. The court also had to consider whether a summary disposal of the proceedings was appropriate, and if so, on what basis. Furthermore, the court was asked to consider an application for costs by the independent children's lawyer, specifically in relation to hardship.

Judge Harman reasoned that significant weight could be placed on the child's views in not wishing to develop a relationship with the Father, given the lack of prior interaction. The court applied the principle that meaningful involvement of both parents in a child's life should be pursued to the extent consistent with the child's best interests. In this instance, the court found that the best interests of the child were served by not facilitating any relationship with the Father at this time. The court also determined that a summary disposal was appropriate, as a full hearing would not be in the child's best interests. The application for costs by the independent children's lawyer was dismissed.

The court ordered that the Applicant Mother have sole parental responsibility and that the child live with her. The child was to spend no time with the Father. The Father was restrained from approaching or contacting the Mother and/or child, and from engaging third parties to do so. The Minister was directed to issue an Australian passport for the child without the Father's consent, and the Father's consent for passport purposes was dispensed with. The Mother was granted possession of the child's passport. The Independent Children's Lawyer was discharged with the Court's thanks, and all issues were removed from the list of cases awaiting hearing. Leave was granted to the Independent Children's Lawyer to seek orders for a contribution to costs by each party, but the application for costs was dismissed.

Orders

Orders of the court

That the Applicant Mother have sole parental responsibility of the child, X born on 2007 (“Child”).

That the Children live with the Applicant Mother.

The child to spend no time with the father.

That pursuant to section 68B of the Family Law Act 1975 (Cth), the Respondent Father be restrained from approaching or contacting the Applicant Mother and/or child and engaging third parties to approach and/or contact the Applicant Mother and/or child.

That pursuant to section 11 of the Australian Passports Act 2005 (Cth), the Minister issues an Australian passport in the name of X Shkhayer without the necessity of obtaining the consent of the Child’s Father.

That the consent of the father in obtaining a passport be dispensed with.

That the mother have the possession of the child’s passport.

Discharge the Independent Children’s Lawyer with the Court’s thanks.

Remove all issues from the list of cases awaiting hearing.

10.

Grant leave to the Independent Children’s Lawyer to seek Orders as to a contribution to costs by each of the parties.

11.

Dismiss the Application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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