MASIH & EL SAEID - [2020] FamCAFC 152

FAMILY COURT OF AUSTRALIA

MASIH & EL SAEID

[2020] FamCAFC 152

FAMILY LAW – APPEAL – PARENTING – Competing applications as to children’s primary living arrangements and time – Views – Where children resist relationship with the appellant – Assessment of Risk – Children not at risk – Expert opinion as to outcome in favour of the appellant not considered – Reasons for judgment –Inadequacy of reasons – Applications to adduce further evidence dismissed – Appeal allowed – Matter remitted for rehearing – Costs certificates awarded.

Family Law Act 1975 (Cth) Pts VII, VIII, ss 60CC, 69ZN
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
De Winter and De Winter (1979) FLC 90-605
DL v The Queen (2018) 356 ALR 197; [2018] HCA 26
House v The King (1936) 55 CLR 499; [1936] HCA 40
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

APPELLANT:

Mr A Masih

RESPONDENT:

Ms El Saeid

INDEPENDENT CHILDREN’S LAWYER:

Phillip A Wilkins & Associates

FILE NUMBER:

SYC

2986

2012

APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

25 June 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Watts & Austin JJ

HEARING DATE:

13 November 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 APPELLANT:

Mr Duane

SOLICITOR FOR THE APPELLANT:

Diamond Conway Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Friedlander

SOLICITOR FOR THE RESPONDENT:

Sharah & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fermanis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Philip A Wilkins & Associates

Orders

The Application in an Appeal filed by the respondent on 25 October 2019 is dismissed.
The Response to an Application in an Appeal filed by the appellant on 11 November 2019 is dismissed.
The appeal from the orders made on 16 April 2019 is allowed and those orders are set aside.
The proceedings are remitted to the Family Court of Australia for rehearing by a judge other than the primary judge.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the cost incurred by her in relation to this appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions…

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 [2020] FamCAFC 152
Case: [2020] FamCAFC 152
Decision Date: 25 June 2020

CaseChat Overview and Summary

The case of MASIH & EL SAEID involves a dispute between two parties concerning their children, which was heard and determined by the Family Court of Australia. The matter reached the Family Court of Australia Appeal Division, which was required to address several legal issues stemming from the original family law proceedings. The core issue was whether the primary judge made any errors in law or procedure that warranted a rehearing of the case. The appeal challenged the orders made on 16 April 2019, focusing on the primary judge's handling of the case, including the assessment of evidence and the application of relevant legal principles.

The Family Court of Australia Appeal Division found that the appeal was valid, and that the orders made on 16 April 2019 should be set aside. The court held that the primary judge had erred in the manner in which they approached certain aspects of the case, particularly in the assessment of evidence and the application of the legal principles. This error was deemed significant enough to necessitate a rehearing of the proceedings before a different judge. Consequently, the appeal was allowed, and the proceedings were remitted to the Family Court of Australia for rehearing.

In light of the findings, the Family Court of Australia Appeal Division issued several orders. The appeal was allowed, and the orders made on 16 April 2019 were set aside. The proceedings were remitted to the Family Court of Australia for rehearing by a different judge. Additionally, the court granted costs certificates to the appellant, the respondent, and the Independent Children’s Lawyer, enabling them to seek appropriate compensation for the costs incurred during the appeal process and the anticipated costs for the rehearing.

Orders

Orders of the court

The Application in an Appeal filed by the respondent on 25 October 2019 is dismissed.

The Response to an Application in an Appeal filed by the appellant on 11 November 2019 is dismissed.

The appeal from the orders made on 16 April 2019 is allowed and those orders are set aside.

The proceedings are remitted to the Family Court of Australia for rehearing by a judge other than the primary judge.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to this appeal.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the cost incurred by her in relation to this appeal.

The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.

The Court grants to each party and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.

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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