A Complex Family Law Matter Involving Child Custody and Risk Assessment
Kashmiri & Ashwell [2023] FedCFamC1A 55 (1 May 2023)
Intro
The Kashmiri case is a complex family law matter that revolves around child custody and risk assessment. The primary focus is on the welfare of the children involved, as well as the legal processes that were followed by the court in making its decision.
Facts
In this case, there are three children whose parents are separated. The mother has been charged with assault occasioning actual bodily harm against the middle child. As a result, an Apprehended Domestic Violence Order (ADVO) was put in place for the protection of all three children. The father sought to change the primary residence of the children from the mother to himself due to concerns about their safety. The mother argued that she had remained silent about the incident due to her pending criminal charges and that she was not given an opportunity to present evidence regarding her financial capacity to pay for professional supervision during visitations. The primary judge ultimately decided that the children's best interests would be served by changing their residence to live with their father, based on the risks posed by the mother and her failure to provide any evidence to refute these risks or her financial situation.
IRAC Analysis
Issue: The issue here is whether the Appellant, Mr. Kashmiri, should be granted an extension of time to bring an application under section 107 of the Child Support (Assessment) Act 1999 (Cth) for a declaration that he should not be assessed as liable to pay child support for the subject child of the proceedings.
Rule: The relevant legislation in this case is the Child Support (Assessment) Act 1999 (Cth) sections 29 and 107. According to these sections, a person who believes they are not the biological parent of a child can apply for a declaration stating that they should not be assessed for child support payments. However, an application must be made within a certain time frame. In addition, under Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28 and Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.20, 15.06, there are rules regarding applications for extensions of time to bring proceedings.
Application: In applying these rules to the facts, the court considered several factors such as the history of proceedings, conduct of parties, nature of litigation and consequences for parties if extension is granted or refused. The court found that although there was significant delay in bringing proceedings, it was not dispositive given that there was no evidence of material hardship or prejudice to the respondent if extension were granted.
Moreover, the court found that Mr. Kashmiri had demonstrated a reasonably arguable case for relief which should have been sufficient to justify an extension of time as per Gallo v Dawson and Jackamarra v Krakouer cases. However, the primary judge erroneously required him to establish actual entitlement to remedy which was incorrect.
Conclusion: As such, the court ruled in favor of Mr. Kashmiri allowing his appeal and remitting his application for re-hearing by another judge. The court found that the primary judge misapplied legal principles relating to interlocutory applications to extend time and wrongly depreciated the probative value of unchallenged evidence led by Mr. Kashmiri.
Lesson Learned: This case highlights the importance of correctly applying legal principles related to interlocutory applications to extend time in family law proceedings. The courts should not require applicants to prove actual entitlement to remedy but rather a reasonably arguable case for relief should suffice in order to do justice between parties. Furthermore, it reaffirms that delay in bringing proceedings is not necessarily dispositive and all relevant factors including potential hardship or prejudice to other party should be considered. Lastly, it emphasizes that unchallenged evidence should not be depreciated without valid reasons.
Parties’ Details
Solicitor for the Appellant: Legal Aid NSW
The Respondent: Litigant in person (did not participate)