MASOUD & MASOUD - [2012] FamCA 792

FAMILY COURT OF AUSTRALIA

MASOUD & MASOUD

[2012] FamCA 792

FAMILY LAW – CHILDREN – With whom a child lives – Interim Orders – Where the Federal Magistrates Court made orders that the children live with the father while the father’s allegations that the mother was addicted to a prescription drug were investigated – Where there does not need to be a substantial change in circumstances for the orders to be revisited – Where overwhelming drug tests have showed that the mother was not using any substance – Where the daughters make allegations of violence against both their father and their brother in their father’s household – Child’s views – Where the daughters express that they wish to live with the mother and the son expresses that he wishes to live with the father – Children of an age where their respective wishes should be given weight - Orders that the daughters live with the mother and the son live with the father

FAMILY LAW – COUNSELLING – Confidentiality – Where both parties agree that the children should attend counselling – Whether that counselling should be entirely confidential –Role of therapist and role of reporter are inimical – Orders that counselling be kept confidential

APPLICANT:

Ms Masoud

RESPONDENT:

Mr Masoud

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central Family Law

FILE NUMBER:

SYC

2198

2012

DATE DELIVERED:

3 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

3 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirk SC

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

ORDERS

IT IS ORDERED

That the orders of Federal Magistrate Sexton insofar as they relate to the child J born … July 1997 be discharged.

IT IS NOTED

That the parties are agreed that J will live with the father and spend time with his mother and with his sisters in his mother’s home in accordance with the arrangements that J will make directly with his mother.

IT IS REQUESTED

That the independent children’s lawyer advise J of the effect of that notation and advise J that both of his parents have told the Court that they will encourage his relationship with his mother and that the mother hopes that J will come and stay with her at times when the girls are living with her overnight.

IT IS FURTHER ORDERED

That the children D born … August 2000 and G born … September 2002 live with the mother.
That D and G spend time with their father each alternate weekend from Thursday afternoon after school until Monday morning when he will cause them to be returned to school in each alternate week commencing on Thursday 16 August 2012.
That in each other week commencing Thursday 9 August 2012 D and G will spend time with their father from after school on Thursday until the commencement of school on Friday.
That D and G…

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.

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Details

AGLC: MASOUD & MASOUD [2012] FamCA 792
Case: [2012] FamCA 792
Decision Date: 3 August 2012

CaseChat Overview and Summary

In the matter of *Masoud & Masoud*, heard before Rees J, the dispute concerned interim parenting orders for three children. The Federal Magistrate had previously ordered that the children live with the father pending an investigation into allegations of the mother's prescription drug addiction. However, subsequent drug tests overwhelmingly indicated the mother was not using any substances. Furthermore, the daughters made allegations of violence within the father's household involving both the father and their brother.

The court was required to determine whether the interim orders should be revisited, notwithstanding the absence of a substantial change in circumstances. It also had to consider the expressed wishes of the children, with the daughters wishing to live with the mother and the son wishing to live with the father. A further issue was whether counselling for the children, to which both parties agreed, should be entirely confidential, given the potential conflict between the roles of therapist and reporter.

Rees J reasoned that interim orders could be revisited without a substantial change in circumstances, particularly in light of the conclusive drug test results and the serious allegations of violence made by the daughters. The court gave significant weight to the wishes of the daughters, who were of an age where their views were considered important. The court also determined that the role of a therapist and a reporter were inimical, and therefore, the counselling should be kept confidential.

Consequently, Rees J ordered that the previous orders of the Federal Magistrate, insofar as they related to the child J, be discharged. The judgment indicates a division of the children, with the daughters to live with the mother and the son to live with the father, and that counselling for the children would be confidential.

Orders

Orders of the court

IT IS ORDERED

That the orders of Federal Magistrate Sexton insofar as they relate to the child J born … July 1997 be discharged.

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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