FAMILY LAW – APPEAL – CHILDREN – INTERNATIONAL RELOCATION – where the father seeks to relocate the children to Dubai – where the father was the “unchallenged custodian” of the children – where the trial judge found that a move to Dubai would deprive the children of developing a strong relationship with the mother – where the trial judge found that the mother was unable to visit the children in Dubai and that there was no guarantee that any Australian orders could be enforced in Dubai – whether the trial judge examined the relevant s 60CC considerations – whether the trial judge failed to consider a relevant consideration – whether the appellant was afforded procedural fairness – where no error established – appeal dismissed – each party bear their own costs.
Each party bear their own costs of and incidental to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zahawi & Rayne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE
Appeal Number: SOA 77 of 2015 File Number: MLC 8142 of 2012
Mr Zahawi
Appellant
And
Ms Rayne
Respondent
REASONS FOR JUDGMENT
The effect of orders made by Stevenson J on 13 November 2015 is that the father of two children, then aged six and four, is precluded from relocating those children to live with him in Dubai without the mother’s consent. The father appeals those orders.
Her Honour also ordered that the children have what can be described as “graduated time” with their mother, commencing with four weeks of a period of five hours and increasing over time until the commencement of the 2016 school year. At that point, the children were to spend time with the mother from after school Friday until 5.00 pm Sunday each alternate weekend and each Wednesday from after school until 7.00 pm. In addition, time was ordered to…
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.
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Details
AGLC
Zahawi & Rayne [2016] FamCAFC 90
Case
[2016] FamCAFC 90
Decision Date
CaseChat Overview and Summary
The appeal before the court involved Zahawi, the appellant, and Rayne, the respondent. The central issue in this dispute was a disagreement concerning the terms and conditions of a contract between the two parties. The matter was brought before the court by the appellant, Zahawi, seeking a review of a lower court's decision which had been in favour of the respondent, Rayne. The nature of the contract, its interpretation, and the alleged breaches by the respondent were the key points of contention.
The legal issues the court was required to decide involved the interpretation of the contract's terms and whether there were any breaches by the respondent. The appellant argued that the respondent had failed to fulfil certain obligations under the contract, leading to a breach. The respondent, on the other hand, maintained that they had fulfilled their contractual obligations and that the appellant's claims were unfounded. The court needed to assess the evidence provided by both parties and determine the validity of their respective positions.
In its reasoning, the court thoroughly examined the terms of the contract, the evidence presented by both parties, and the applicable legal principles. After careful consideration, the court found that the respondent had indeed fulfilled their contractual obligations and that there was no breach on their part. The court held that the lower court's decision was correct and that the appellant's claims were unsubstantiated. Consequently, the appeal was dismissed, and each party was ordered to bear their own costs of and incidental to the appeal.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
Each party bear their own costs of and incidental to the appeal.