Masri & Masri (No 2) - [2017] FamCA 898

FAMILY COURT OF AUSTRALIA

MASRI & MASRI (NO. 2)

[2017] FamCA 898

FAMILY LAW – CHILDREN – Best Interests – Where there are allegations of family violence – Where there have been past allegations of sexual abuse – Where the allegations of sexual abuse were not pressed at final hearing – Where family violence was not a substantial issue at final hearing – Where the mother making further claims that the father has abused the children would be considered emotional abuse – Where the mother has significant personality vulnerabilities according to the expert – Where the children currently spend alternate weekends with the father – Where the risk of the mother making unfounded allegations of abuse has decreased – Where the expert recommends the children remain living with the mother – Orders made for the children to live with the mother and spend time with the father.

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

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Ms Masri

RESPONDENT:

Mr Masri

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

5617

2014

DATE DELIVERED:

9 November 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

17, 18 ,19 & 20 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Judge

SOLICITOR FOR THE APPLICANT:

AJ & Associates Lawyers

SOLICITOR FOR THE RESPONDENT:

Browns The Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

All previous parenting orders in relation to the children D born … 2011 and E born … 2013 (“the children”) be discharged.
The parents have equal shared parental responsibility for the children.
The children live with the mother.
The children spend time with the father as follows:
(a) During the school term, in a two week cycle as follows:
(i)In week one from after school or day-care Friday until the commencement of school or day-care Monday;
(ii)In week two from after school or day-care Tuesday until the commencement of school or day-care Wednesday;
(b)For one half of each NSW school holidays following Terms 1, 2 and 3 by agreement and failing agreement:
(i)In the first half of the holidays in each year ending in an even number, from the conclusion of the last day of required school attendance to 3pm on the middle Saturday of the holiday period; and
(ii)In the second half of the holidays in each year ending in an odd number, from 3pm on the middle Saturday of the holiday period to 3pm the Saturday immediately preceding the resumption of school; and
(iii)Subparagraph (a) above is to be suspended for the entirety of the school holiday periods referred to.
(c)For one half of the Term 4 NSW school holiday by agreement, and failing agreement:
(i)In the first half of the holidays in each year ending in an even number,…

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 (No 2)

Details

AGLC: Masri & Masri (No 2) [2017] FamCA 898
Case: [2017] FamCA 898
Decision Date: 9 November 2017

CaseChat Overview and Summary

In *Masri & Masri (No 2)*, Hannam J determined parenting orders concerning the children D and E. The dispute involved the arrangements for the children's living arrangements, time spent with each parent, and related welfare matters.

The court was required to determine the specific terms of parenting orders, including the allocation of equal shared parental responsibility, the children's primary residence, and a detailed schedule for the children's time with each parent during school terms, school holidays, and significant annual events. Further issues included provisions for communication between the parents, the prohibition of physical discipline and denigration, and arrangements for the children's education and medical care.

Hannam J applied the principles of the *Family Law Act 1975* (Cth), focusing on the best interests of the children. The court ordered the discharge of all previous parenting orders and established new arrangements. These included equal shared parental responsibility, with the children to live with the mother. A detailed two-week cycle for time spent with the father during school terms was set, along with specific provisions for school holidays, Christmas, Easter, birthdays, and other significant days. The orders also included prohibitions on physical discipline and denigration, detailed communication protocols, and requirements for information sharing regarding the children's health and education, including enrolment at a specific school and clinic.

Orders

Orders of the court

All previous parenting orders in relation to the children D born … 2011 and E born … 2013 (“the children”) be discharged.

The parents have equal shared parental responsibility for the children.

The children live with the mother.

The children spend time with the father as follows:

(a) During the school term, in a two week cycle as follows:

(i) In week one from after school or day-care Friday until the commencement of school or day-care Monday;

(ii) In week two from after school or day-care Tuesday until the commencement of school or day-care Wednesday;

(b) For one half of each NSW school holidays following Terms 1, 2 and 3 by agreement and failing agreement:

(i) In the first half of the holidays in each year ending in an even number, from the conclusion of the last day of required school attendance to 3pm on the middle Saturday of the holiday period; and

(ii) In the second half of the holidays in each year ending in an odd number, from 3pm on the middle Saturday of the holiday period to 3pm the Saturday immediately preceding the resumption of school; and

(iii) Subparagraph (a) above is to be suspended for the entirety of the school holiday periods referred to.

(i) In the first half of the holidays in each year ending in an even number, from the conclusion of the last day of required school attendance to 3pm on the middle Saturday of the holiday period; and

(ii) In each year ending in an odd number from 3pm on the middle Saturday to 3pm the Saturday immediately preceding the resumption of school; and

(iii) Subparagraph (a) above is to be suspended for the entirety of the school holiday period referred to.

Notwithstanding the arrangements otherwise provided for by these orders, the following arrangements shall prevail on the following occasions:

(a) The children shall spend time with the father from 3.00pm Christmas Eve to 3.00pm Christmas Day in every year ending in an even number and from 3.00pm Christmas Day to 3.00pm Boxing Day in every year ending in an odd number.

(b) The children shall spend time with the mother from 3.00pm Christmas Eve to 3.00pm Christmas Day in every year ending in an odd number and from 3.00pm Christmas Day to 3.00pm Boxing Day in every year ending in an even number.

(c) The children shall spend time with the father during the Easter period from 3.00pm Easter Thursday to 3.00pm Easter Saturday in each year ending in an even number and from 3.00pm Easter Saturday to 3.00pm Easter Monday in each year ending in an odd number.

(d) The children shall spend time with the mother during the Easter period from 3.00pm Easter Thursday to 3.00pm Easter Saturday in each year ending in an odd number and from 3.00pm Easter Saturday to 3.00pm Easter Monday in each year ending in an even number.

(e) The children shall spend time with the mother from 9.00am to 6.00pm on Mother’s Day in every year.

(f) The children shall spend time with the father from 9.00am to 6.00pm on Father’s Day in every year.

(g) On each of the birthdays of the children, both children shall spend time with the party with whom they are not otherwise with for a period of three hours and failing agreement from 4pm to 7pm.

(h) On the birthday of each party the children shall spend time with that party (if they are not otherwise living with or spending time with that party) for a period of three hours at a time agreed between the parties and failing agreement from 3pm to 6pm.

Changeover shall occur with the children being collected from day-care/pre-school/school at the commencement of their time with the father and with the father delivering the children to day-care/pre-school/school at the conclusion of their time with the father and in the event that changeover does not coincide with the commencement or conclusion of day-care/pre-school/school, changeover shall occur at McDonalds Suburb F.

Each party is hereby restrained from physically disciplining the children, and such physical discipline is deemed to include any and all physical chastisement and causing the children to kneel down with their hands on their head whilst in time out.

Each party is hereby restrained from denigrating the other or a member of the other party’s family in the hearing or presence of the children or permitting a third person to do so.

The parties shall keep each other informed of:

(a) any serious medical problems or illnesses suffered by the children while in the other’s care;

(b) any medication that has been prescribed for the children;

10.

For the purposes of communicating information as between them, the mother and the father shall:

(a) communicate by telephone concerning matters of an urgent nature and otherwise;

(b) by sending the other a text message.

11.

Each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven days of such change occurring.

12.

The parent with whom the children are not ordinarily living or spending time shall have telephone communication with the children between 6.00pm and 6.30pm each Tuesday and Thursday, with such communication to be initiated by the parent with whom the children are not living or spending time by contacting the parent with whom the children are living or spending time on that parent’s contact telephone number.

13.

For the purposes of Order 12 above, the parent with whom the children are living or spending time shall ensure that the children are available to receive the other parent’s call, that their contact telephone is switched on and in a reception area, that the children are provided with a quiet place for such phone call to take place and that the phone call is not placed on loudspeaker.

14.

Within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school, the mother shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, forwards directly to the father, copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.

15.

Each parent shall ensure that the children are delivered to all extra-curricular events that occur whilst the children are in their care, and the parent delivering the children shall ensure that the children are provided with all necessary equipment, clothing and items as requested by the provider of the extra-curricular activity.

16.

Each parent shall inform the other in writing as soon as practicable of any appointments with a specialist medical practitioner (“consultant”) in relation to the children; and

(a) Each parent shall do all acts and things to ensure that the other parent is provided with all reports by any such consultant;

(b) Each parent be permitted to attend on such consultant, such attendance or attendances to be at the sole discretion of any such consultant.

17.

The parties shall do all things necessary to ensure the children attend only upon G Clinic, Suburb F in respect of ongoing medical treatment, and shall comply with the reasonable recommendations of such Medical Practice unless in circumstances of emergency, in which case the parties shall cause the children to attend upon the Emergency Department of the nearest hospital.

18.

Each of the children shall be enrolled at and attend H School for primary school, or such other primary school as agreed by the parties in writing.

19.

The parents shall each be permitted to allow the children to participate in and practice both the parents religions.

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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