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…

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 Masih and El Saeid

Details

AGLC: Masih and El Saeid [2019] FamCAFC 89
Case: [2019] FamCAFC 89
Decision Date: 28 May 2019

CaseChat Overview and Summary

The case of Masih and El Saeid involved a dispute over an appeal filed by the respondent against a previous court decision. The matter was heard by the Family Court of Australia, which was required to decide on the admissibility of new evidence and the timeliness of the appeal application. The primary issue before the court was whether the respondent's application for leave to file an affidavit, which was intended to support her appeal, was made within the prescribed time limits. Additionally, the court had to consider if the new evidence presented in the affidavit was sufficient to warrant a reconsideration of the earlier decision.

The court examined the procedural rules governing the filing of appeals and the presentation of new evidence. It noted that while the respondent's application for leave to file the affidavit was technically late, the court has discretion to accept such applications if there are exceptional circumstances. The court found that the respondent had not provided a satisfactory explanation for the delay, nor did she demonstrate any exceptional circumstances that would justify the late filing of the affidavit. Furthermore, the court assessed the content of the affidavit and concluded that the new evidence did not significantly alter the factual matrix upon which the original decision was based.

Consequently, the court granted the respondent leave to file her affidavit but dismissed the appeal application. The reasoning was that while the affidavit was accepted, it did not provide a compelling basis to overturn the earlier decision. The court emphasised that strict adherence to procedural timelines is crucial and that late applications must be accompanied by compelling reasons and evidence to warrant reconsideration. The orders made by the court included allowing the affidavit to be filed but denying the appeal on the grounds that it was not timely and did not present sufficient new evidence to merit a change in the original decision. There was no order as to the costs of this application, reflecting the court's decision to leave the matter of costs to be determined in the Court's records.

Orders

Orders of the court

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.

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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