Masih and El Saeid - [2019] FamCAFC 89

FAMILY COURT OF AUSTRALIA

MASIH & EL SAEID

[2019] FamCAFC 89

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Expedition of an appeal against parenting orders – Where the respondent and the ICL neither oppose nor consent to the orders sought by the applicant– Where the applicant has acted promptly in filing both the appeal and the application for expedition – Whether the urgency of the appeal is such that it should displace other appeals waiting to be heard – Where the children are not spending time with the applicant as provided for in the orders made by the primary judge – Where the applicant submits that the longer the delay before the appeal comes on for hearing, the more difficult it will be for him to re-establish his relationship with the children – Where the appeal will not solve the underlying issue of the children refusing to see the applicant – Application dismissed – No order as to costs.

Family Law Act 1975 (Cth), s 117(1)

Family Law Rules 2004 (Cth), r 12.10A

APPLICANT:

Mr A Masih

RESPONDENT:

Ms El Saeid

INDEPENDENT CHILDREN’S LAWYER:

Phillip A Wilkins & Associates

FILE NUMBER:

SYC

2986

2012

APPEAL NUMBER:

2019

DATE DELIVERED:

28 May 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

28 May 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 April 2019

LOWER COURT MNC:

[2019] FamCA 234

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cameron

SOLICITOR FOR THE APPLICANT:

Diamond Conway Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Friedlander

SOLICITOR FOR THE RESPONDENT:

Sharah & Associates Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Wilkins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Phillip A Wilkins & Associates

Orders

The respondent is granted leave to file in court her Affidavit sworn on 28 May 2019.
The Application in an Appeal filed on 13 May 2019 is otherwise dismissed.
There be no order as to costs of this application.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Masih & El Saeid has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 42 of 2019
File Number: SYC 2986 of 2012

Mr A Masih

Applicant

And

Ms El Saeid

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed on 13 May 2019, Mr A Masih (“the applicant”) seeks an order expediting his appeal against parenting orders made by Justice Loughnan on 16 April 2019. The respondent to the application and the Independent Children’s Lawyer (“the ICL”) neither opposed, nor consented to, the order sought.
The parties have two children aged 13 and 10. The orders made by the primary judge on 16 April 2019, provided for the children to live with the respondent who was to have sole parental responsibility for them. For a period of two months after the orders were made, the children were to spend four hours each Sunday and from after school on Wednesday until 7.30pm with the applicant. Thereafter, they were to spend time with the applicant each alternate weekend from after school on Friday until the commencement of school on Monday. In addition, they were to spend every second Thursday night with the applicant.
A Notice of Appeal was filed on 13 May 2019.
Previously, orders were made on 17 September 2012, which put in place a regime of equal shared parental responsibility for the children and a shared care arrangement.
In August 2016, a mandatory reporter notified the Department of Family and Community Services (“FACS”) that the older child had said that if he had to go home with the applicant, he would kill himself. An investigation followed.
The time that the children were to spend with the applicant deteriorated badly in 2017. Police were involved and a number of interim applications to the Court were made. The children spent limited time with the applicant. On two occasions, that time was spent pursuant to recovery orders made by the Court.
It appears that after 23 June 2017, the children did not spend any time with the applicant.
At the hearing, the applicant proposed that the children should live with him and that he should have sole parental responsibility for them. He also proposed that after a moratorium on seeing the respondent, they were to spend limited time with her at a contact centre. Only thereafter, do the proposed orders provide for more extensive and unsupervised time with the respondent.
The ICL’s proposed orders were along similar lines to those proposed by the applicant.
The respondent sought sole parental responsibility for the children who were to live with her and spend time with the applicant on a limited and supervised basis, gradually extending to unsupervised time on Saturdays and Sundays every second weekend. As can be seen, the primary judge’s orders followed largely the orders proposed by the respondent, but the orders as to the time the children were to spend with the applicant, varied significantly from them.
The Family Law Rules 2004 (Cth) do not deal expressly with applications for expedition on appeals. However, a useful guide as to what considerations are relevant can be found in Rule 12.10A, which applies to trials.
Here, the applicant has acted promptly in filing both the appeal and this application. A draft appeal index has not yet been filed, although the time for its filing has not yet expired.
The respondent has not identified any prejudice that would flow to her if the application was granted.
The applicant’s evidence is that the children have been reluctant to spend time with him and are being difficult at changeovers.
This, essentially, is a similar pattern of conduct as to what occurred in 2017. After two attempts to collect the children from school, which could not be described as successful, the parties arranged for the W Centre to supervise the initial period of time that the children were to spend with the applicant.
The first occasion on 12 May 2019 did not go well. The younger child said nothing to the applicant and the older child merely expressed what was bothering him. The supervisor said that it was not a positive experience for either child.
On 19 May 2019, the children told the supervisor that they did not want to attend. Eventually, the children spoke to the applicant via a loud speaker saying that they did not want to see him.
On 22 May 2019, the children refused to see the applicant. The supervisor decided not to press the point and no contact took place. The applicant has since cancelled the future use of the service.
The effect of the above is that the children are not spending time with the applicant as provided for in the orders.
The applicant submits that the longer the delay before the appeal comes on for hearing, the more difficult it will be for him to re-establish his relationship with the children.
That may well be so, but the appeal will simply determine whether or not an error has been made on the part of the primary judge. Whilst the Court could re-exercise the discretion and make orders if error is established, in light of the subsequent events that both parties have deposed on this application, it has to be said that it is extremely likely that the matter will be remitted for rehearing. Of course, another outcome is that the appeal will simply be dismissed.
Either way, it seems to me that the appeal will not solve the underlying issue of the children refusing to see the applicant.
That is an unfortunate outcome, but simply reflects the nature of the appeal process. It follows that the children continue not to see the applicant, which is a position that has been in place since at least the middle of 2017. That means that the children have been almost entirely in the care of the respondent since that time. The children seem to be doing well at school. There is no suggestion of psychological or physical abuse, although it is clearly the applicant’s case that the respondent is playing a significant role in the refusal of the children to see the applicant. I accept, of course, the finding of the primary judge, that it is in the best interests of the children to see the applicant.
This is certainly an appeal, like many parenting appeals, that should be heard as quickly as possible. However, expediting an appeal gives it a priority which displaces other appeals from hearing and they will then be delayed in having their appeal resolved. Those appeals include appeals from parenting orders, which like the present appeal, raise significant issues as to the best interests of the children involved.
The issue is then whether I am satisfied that the urgency of this appeal is such that it should displace other appeals waiting to be heard. As I have said, the evidence does not disclose any immediate threat of harm to the children. The children remain in the care of the respondent where they have been for some time.
Whilst that is not the state of affairs that the primary judge had said to be in the best interests of the children, it has been the reality for over two years.
I also take into account the fact that in Sydney the appeal is likely to be listed for hearing promptly after the preliminary steps for preparation have been undertaken.

Conclusion

Overall, I am not satisfied that the appeal should be expedited and the application will be dismissed.

Costs

The respondent applies for the costs of this application to be paid for by the applicant. She has prepared an affidavit which has been read in the proceedings and was of utility. However, given her attitude to the application which was neither to consent to, nor oppose it, I am not satisfied that circumstances exist that would justify a departure from s 117(1) of the Family Law Act 1975 (Cth).
The application for costs is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 28 May 2019.

Associate:

Date: 23 July 2019