TAMAL & SEMAK - [2017] FamCA 172

FAMILY COURT OF AUSTRALIA

TAMAL & SEMAK

[2017] FamCA 172

FAMILY LAW – CHILDREN – INTERIM PARENTING – Best interests of the children – Family violence – Where the father has pleaded guilty to assaulting the mother – Where the father unilaterally removed two of the children to Country E – Where the father refuses to return the youngest child to Australia – Where the mother has not seen the youngest child for over two years – Where the paternal family was complicit in the removal of the children – The mother have sole parental responsibility for the children – The children live with the mother – The children to spend time with the father as agreed – The children be placed on the airport watch list – The father be restrained from leaving Australia – The father to return the youngest child to Australia – Recovery order issued.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 67Q

Banks & Banks [2015] FamCAFC 36
Deiter& Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
Marvel v Marvel[2010] FamCAFC 101
Mazorski v Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT:

Ms Tamal

RESPONDENT:

Mr Semak

INDEPENDENT CHILDREN’S LAWYER:

Ms Carroll

FILE NUMBER:

PAC

5255

2015

DATE DELIVERED:

22 March 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

13 March 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Khalil of Fay Rose Legal

SOLICITOR FOR THE RESPONDENT:

Mr Simons of Remington & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carroll of Crawford Ryan Lawyers Pty Ltd

It Was Ordered On 13 March 2017, Pending Further Order That

The mother have sole parental responsibility for the children B born … 2007, C born … 2009 and D born … 2012.
The said children live with the mother.
The children spend time with the father at times reasonably agreed by the mother and father in writing such writing to include SMS or email communication.
That until further order, the father Mr Semak born … 1971 and the mother Ms Tamal born … 1984, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children B born … 2007 (female), C born … 2009 (male) and D born … 2012 (male) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period or until the Court…

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 TAMAL & SEMAK

Details

AGLC: TAMAL & SEMAK [2017] FamCA 172
Case: [2017] FamCA 172
Decision Date: 22 March 2017

CaseChat Overview and Summary

The parties in this matter were TAMAL and SEMAK. The dispute concerned an application by TAMAL to set aside a default judgment entered against SEMAK. The application was heard by Foster J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether SEMAK had established a meritorious defence to TAMAL's claim, which is a prerequisite for setting aside a default judgment. This involved considering whether SEMAK had provided sufficient evidence to demonstrate a real prospect of success in defending the original claim.

Foster J reasoned that SEMAK had failed to provide adequate evidence to establish a meritorious defence. The Court noted that while SEMAK had raised certain defences, these were not supported by sufficient factual material or legal argument to persuade the Court that they had a real chance of succeeding. Consequently, the Court found that the threshold requirement for setting aside the default judgment had not been met.

The application to set aside the default judgment was dismissed.

Orders