MASRI & MASRI - [2019] FCCA 3223

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASRI & MASRI

[2019] FCCA 3223

Catchwords:
FAMILY LAW – Interim Parenting Decision.

Legislation:

Family Law Act 1975 (Cth)
Inclosed Lands Protection Act 1901 (NSW)

Cases cited:

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Applicant:

MS MASRI

Respondent:

MR MASRI

File Number:

PAC 5617 of 2014

Judgment of:

Judge Myers

Hearing date:

28 August 2019

Date of Last Submission:

28 August 2019

Delivered at:

Parramatta

Delivered on:

29 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms Judge

Solicitors for the Applicant:

Ms Hayman

Counsel for the Respondent:

Ms Dart

Solicitors for the Respondent:

Ms Doumitt

ORDERS

I therefore make the following orders pending further order:

All previous parenting orders be discharged.
Pending further order the children E, male, born in 2013 and D, female, born in 2011 live with the father.
Pending further order the children spend time with the mother supervised by a professional supervision service run by a professional operator or otherwise non-government organisation as nominated by her on such times and dates as they make available. The parties are to do all acts and things to enrol the children with the supervision service nominated by the mother. Each party is to equally share the cost of the supervision service.
The parties be prohibited by injunction from discussing the proceeding with the children or discussing the disclosures the children have made to the family consultant and/or Mr P.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child/ren E, male, born in 2013 and D, female, born in 2011 and the Legal Aid Commission of New South Wales is requested to provide such representation. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
Pending further order the mother and any of her agents be prevented by injunction from further attending upon the children’s school or instructing or allowing any other person to do so.
The matter is adjourned to 2 September 2019 at 10am for directions.
The children be entitled to obtain counselling through the school counsellor. A copy of today’s orders is to be forwarded to the school principal within 24 hours of being received by the parties.

IT IS NOTED that publication of this judgment under the pseudonym Masri & Masri is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5617 of 2014

MS MASRI

Applicant

And

MR MASRI

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an interim parenting decision in the matter of Masri and Masri in relation to two children of the parties’ relationship, D, born in 2011, and E, born in 2013. By way of final orders made in the Family Court by Hannan J on 9 November 2017, the children were to live with…

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 MASRI & MASRI

Details

AGLC: MASRI & MASRI [2019] FCCA 3223
Case: [2019] FCCA 3223
Decision Date: 29 August 2019

CaseChat Overview and Summary

In the matter of *Masri & Masri*, Judge Myers of the Family Court of Australia considered interim parenting orders concerning two children, E (born 2013) and D (born 2011). The dispute involved the arrangements for the children's living situation and time spent with each parent.

The court was required to determine the interim living arrangements for the children, the terms of their time spent with the mother, and whether to appoint an Independent Children’s Lawyer. Additionally, the court needed to consider injunctive relief to prevent discussion of the proceedings with the children and to restrict the mother's attendance at the children's school.

Judge Myers reasoned that, pending further order, the children should live with the father. The mother's time with the children was to be supervised by a professional service nominated by her, with costs shared equally. The court also issued injunctions prohibiting both parents from discussing the proceedings or disclosures made by the children with them. An Independent Children’s Lawyer was appointed for the children, with a request for representation from Legal Aid NSW. Further injunctive relief was granted to prevent the mother or her agents from attending the children's school. The matter was adjourned for directions, and the children were permitted to obtain counselling through the school.

Orders

Orders of the court

I therefore make the following orders pending further order:

All previous parenting orders be discharged.

Pending further order the children E, male, born in 2013 and D, female, born in 2011 live with the father.

Pending further order the children spend time with the mother supervised by a professional supervision service run by a professional operator or otherwise non-government organisation as nominated by her on such times and dates as they make available. The parties are to do all acts and things to enrol the children with the supervision service nominated by the mother. Each party is to equally share the cost of the supervision service.

The parties be prohibited by injunction from discussing the proceeding with the children or discussing the disclosures the children have made to the family consultant and/or Mr P.

Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child/ren E, male, born in 2013 and D, female, born in 2011 and the Legal Aid Commission of New South Wales is requested to provide such representation. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

Pending further order the mother and any of her agents be prevented by injunction from further attending upon the children’s school or instructing or allowing any other person to do so.

The matter is adjourned to 2 September 2019 at 10am for directions.

The children be entitled to obtain counselling through the school counsellor. A copy of today’s orders is to be forwarded to the school principal within 24 hours of being received by the parties.

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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