MASIH & EL SAEID - [2019] FamCA 234

FAMILY COURT OF AUSTRALIA

MASIH & EL SAEID

[2019] FamCA 234

FAMILY LAW – CHILDREN – Best interests – Where there are two children of the relationship – Where both parents sought sole parental responsibility for the children – Where the parents have been unable to communicate on any parenting issues – Where both parents sought an interim period of no time with the other parent – Where the children allege violence and poor living conditions when in the father’s care – Where there is no evidence that the children are at significant risk of harm in the father’s care – Where the children express wishes to only spend time with the mother – Where having no time with the father would not be in the best interests of the children – Orders made for the mother to have sole parental responsibility – Orders made for the children to have significant and substantial time with the father.

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

APPLICANT:

Mr A Masih

RESPONDENT:

Ms El Saeid

INDEPENDENT CHILDREN’S LAWYER:

JPM Legal

FILE NUMBER:

SYC

2986

2012

DATE DELIVERED:

16 April 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATES:

28, 29, 30, 31 May & 1 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell SC

SOLICITOR FOR THE APPLICANT:

Diamond Conway Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Friedlander

SOLICITOR FOR THE RESPONDENT:

Sharah & Associates Solicitors & Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Leis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Meehan

Orders

All existing parenting orders are discharged.
The mother shall have sole parental responsibility for R born … 2006 and Q born … 2009 (“the children”).
The mother shall:
(a)notify the father at the earliest practical time of any major decisions to be made in relation to the health, education or change of religious observance for the children or either of them; and
(b)take any views offered by the father in relation thereto, into account; and
(c)advise the father as soon as practicable of the decision she has made on that issue.
The children shall live with the mother.
For a period of two months commencing from the date of these Orders the children spend time with the father as follows:
(a) From 10.00 am to 2.00 pm each Sunday;
(i)that time shall commence by the mother delivering the children to a Contact Centre as agreed between the parties at the time required before the commencement of each occasion.
(ii)that time shall conclude by the father delivering the children to the Suburb J home or such other venue as is agreed between the parties.
(b) from after school to 7.30 pm each Wednesday;
(i)that time shall commence by the father collecting each child after school, from the school premises;
(ii)that time shall conclude by the father delivering the children to the Suburb J home or such other venue as is agreed between the parties.
As and from the…

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 & EL SAEID

Details

AGLC: MASIH & EL SAEID [2019] FamCA 234
Case: [2019] FamCA 234
Decision Date: 16 April 2019

CaseChat Overview and Summary

This matter concerned parenting orders made by Loughnan J in the Federal Circuit and Family Court of Australia. The dispute involved the mother and father of two children, R and Q, regarding their future care and time spent with each parent.

The court was required to determine the primary caregiver for the children, the allocation of parental responsibility, and the specific arrangements for the children to spend time with each parent, including during school terms and holidays. Additionally, the court needed to address the children's therapeutic needs and establish orders to prevent denigration of one parent by the other and to ensure the children's safety.

Loughnan J discharged all existing parenting orders and made new orders reflecting a primary caregiver model. The mother was granted sole parental responsibility for the children, with specific provisions for the father to be notified of and take into account major decisions concerning the children's health, education, and religious observance. The children were ordered to live with the mother. The court then detailed a phased approach to the children spending time with the father, commencing with supervised contact at a contact centre for a two-month period, transitioning to unsupervised time during school terms and holidays, with specific arrangements for alternate weekends and Thursdays, and a division of school holiday periods. The orders also included provisions for the children to attend therapy, with a preference for a therapist from their social and religious background, and imposed mutual restraints on each parent from denigrating the other or striking the children. The court also incorporated a fact sheet detailing the obligations and consequences of contravention of the orders, pursuant to sections 62B and 65DA(2) of the *Family Law Act 1975* (Cth). Leave was granted for parties to apply to amend the wording of the orders within 28 days.

Orders

Orders of the court

All existing parenting orders are discharged.

The mother shall have sole parental responsibility for R born … 2006 and Q born … 2009 (“the children”).

The mother shall:

(a) notify the father at the earliest practical time of any major decisions to be made in relation to the health, education or change of religious observance for the children or either of them; and

(b) take any views offered by the father in relation thereto, into account; and

The children shall live with the mother.

For a period of two months commencing from the date of these Orders the children spend time with the father as follows:

(a) From 10.00 am to 2.00 pm each Sunday;

(i) that time shall commence by the mother delivering the children to a Contact Centre as agreed between the parties at the time required before the commencement of each occasion.

(ii) that time shall conclude by the father delivering the children to the Suburb J home or such other venue as is agreed between the parties.

(b) from after school to 7.30 pm each Wednesday;

(i) that time shall commence by the father collecting each child after school, from the school premises;

(ii) that time shall conclude by the father delivering the children to the Suburb J home or such other venue as is agreed between the parties.

As and from the conclusion of the period during which Order 4 applies the children shall spend time with the father as the parents may agree but in default of any agreement during school term:

(a) from after school each alternate Friday until the commencement of school on the following Monday or if Monday is not a school day, on the following Tuesday;

(i) that time shall commence by the father collecting each child after school, from the school premises;

(ii) that time shall conclude by the father delivering the children to their school or respective schools.

(b) From after school each alternate Thursday, being the Thursday immediately following the Monday/Tuesday referred to in (a) until the commencement of school on Friday;

(i) that time shall time commence by the father collecting each child after school, from the school premises;

(ii) that time shall conclude by the father delivering the children to their school or respective schools.

The mother is restrained from attending at the children’s schools at or near the time the father is to collect the children from school pursuant to these Orders.

Commencing with the July school holidays in 2019, the children shall spend time with the father during school holidays as the parents may agree but in default of any agreement that will be for the first half of each of the shorter school holiday periods and on a week about arrangement during the December/January school holidays. Unless the parents otherwise agree the children will spend the first week of the December/January school holidays with the mother.

(i) That time shall commence by the father collecting each child after school, from the school premises on the last day of school before the commencement of the shorter school holidays and by the mother delivering the children to the father at his home or such other venue as is agreed between the parents at the commencement of each of his weeks of the December/January school holidays;

(ii) That time shall conclude by the father delivering the children to the Suburb J home or such other venue as is agreed between the parents.

The parents shall facilitate the children’s attendance with a therapist agreed between the parties and the father and mother shall follow the directions of that therapist in relation to the duration and frequency of the children’s appointments with the therapist, it be noted that if possible a therapist from the children’s social and religious background shall provide such therapy.

10.

Each parent is restrained from denigrating the other parent to or in the presence or hearing of the children or either of them.

11.

Each parent is restrained from striking the children or either of them.

12.

Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

13.

Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to amending the wording of these Orders.

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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