MOHAMMED SALAH & GASTANA - [2011] FamCA 440

FAMILY COURT OF AUSTRALIA

MOHAMMED SALAH & GASTANA

[2011] FamCA 440

FAMILY LAW – CHILDREN – Parental responsibility – High level of conflict between parties on almost all parenting issues – Where the parties were never married in accordance with Australian law – Where the mother denies being a party to an Islamic marriage ceremony – Cultural legitimacy of relationship not necessary to determination of children’s issues – Where mother denies a de facto relationship or any financial support from the father – Findings in favour of the mother – Where the father has done nothing to promote or facilitate the children’s relationship with the mother – Where the father is unreserved in his criticisms of the mother’s parenting – Father’s allegations unsubstantiated – Family violence – Presumption of equal shared responsibility does not apply – Court required to decide on the name of youngest child – Father opposes the name suggested by the mother on religious grounds – Evidence of Islamic religious leader supports the mother’s suggested name – Where the mother defers to the father with respect to religion – Mother to have sole parental responsibility for the children, save for decisions of religious upbringing.

FAMILY LAW – INJUNCTIONS – Personal protection – Where the mother seeks orders for her own protection and the safety of her children of an earlier relationship – Father opposes injunctions – Best interests of the subject children to issue protective injunctions.

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

Harridge and Anor & Harridge and Anor [2010] FamCA 445
M and M (1988) 166 CLR 69
Marsden and Winch (No. 3) [2007] FamCA 1364
Cowley v Mendoza [2010] FamCA 597
Goode and Goode (2006) FLC 93-286
MRR v GR [2010] HCA 4; (2010) FLC 93-424

APPLICANT:

Mr Mohammed Salah

RESPONDENT:

Ms Gastana

INDEPENDENT CHILDREN’S LAWYER:

Damien Carter

FILE NUMBER:

BRC

6504

2009

DATE DELIVERED:

15 June 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

8, 9 and 10 March 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Applicant in person

COUNSEL FOR THE RESPONDENT:

Mr G. Andrew

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr N. B. McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Damien Carter, Carter Farquar

Orders

The Female Child’s Name

That each of the parents shall, within seven (7) days of the date of this order, do all acts and things and execute all documents to apply for the Registrar of Births, Deaths and Marriages in the State of Queensland to amend the particulars of the registration of the birth of the child born to the mother and the father in these proceedings on 31 May, 2009, so that her name is registered as A Mohammed Salah.
That the said child, A Mohammed Salah, born … May, 2009, shall be identified and known by that name for all intents and purposes in the broader community in which she…

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 MOHAMMED SALAH & GASTANA

Details

AGLC: MOHAMMED SALAH & GASTANA [2011] FamCA 440
Case: [2011] FamCA 440
Decision Date: 15 June 2011

CaseChat Overview and Summary

This case involved a dispute between Ms. Gastana (the mother) and Mr. Mohammed Salah (the father) concerning parenting orders for their two children. The parties were never married in accordance with Australian law, and the mother denied being party to an Islamic marriage ceremony or a de facto relationship, as well as any financial support from the father. The court was required to determine issues relating to parental responsibility, the name of the youngest child, and the children's living arrangements and time spent with each parent. Additionally, the mother sought personal protection injunctions for herself and her children from an earlier relationship, which the father opposed.

The court was required to determine the extent of parental responsibility for the children, specifically whether the presumption of equal shared responsibility applied given the high level of conflict and allegations of family violence. A key issue was the naming of the youngest child, with the father opposing the mother's suggested name on religious grounds. The court also had to consider the best interests of the children in relation to the mother's application for protective injunctions against the father.

Forrest J found that the presumption of equal shared responsibility did not apply due to the family violence and the father's unsubstantiated allegations and criticisms of the mother's parenting, noting that the father had not promoted the children's relationship with the mother. The court accepted evidence from an Islamic religious leader supporting the mother's proposed name for the youngest child, A Mohammed Salah, and ordered that the child be registered and known by that name. The mother was granted sole parental responsibility for the children on all major long-term issues, except for their religious upbringing, for which the father retained sole responsibility. The court also found that issuing protective injunctions was in the best interests of the subject children.

The court ordered that the mother have sole parental responsibility for the children, M and A, in respect of major long-term issues, save for their religious upbringing, for which the father would have sole responsibility. The children were ordered to live with the mother, with specific provisions for time spent with the father, including a detailed schedule for weekdays, weekends, school holidays, and special occasions. The father was restrained from assaulting, harassing, stalking, abusing, or coming into the immediate presence of the mother or her three daughters from a previous relationship, and from entering the workplace of the mother or her daughters. Both parents were ordered to attend a parenting orders program.

Orders

Orders of the court

The Female Child’s Name

That each of the parents shall, within seven (7) days of the date of this order, do all acts and things and execute all documents to apply for the Registrar of Births, Deaths and Marriages in the State of Queensland to amend the particulars of the registration of the birth of the child born to the mother and the father in these proceedings on 31 May, 2009, so that her name is registered as A Mohammed Salah.

That the said child, A Mohammed Salah, born … May, 2009, shall be identified and known by that name for all intents and purposes in the broader community in which she lives and neither parent shall take any steps to cause her to be registered, enrolled or recorded at any educational, cultural, sporting, health care or other institution, organisation or facility by any other name.

Parental Responsibility

That the mother, Ms Gastana, has sole parental responsibility for the children, M, born …July, 2008 and the said A in respect of the major long-term issues about all aspects of their lives save for their religious upbringing.

That the father, Mr Mohammed Salah, has sole parental responsibility for the said children in respect of the major long-term issues about their religious upbringing.

That when the parents make decisions in the exercise of the sole parental responsibility conferred on them respectively pursuant to paragraphs (3) and (4) of this order, each shall notify the other in writing of the decision that has been taken.

Parenting and Living Arrangements

That the said children shall live with the mother.

That the said children shall spend time with the father as follows:-

(a) Until M attends Preparatory School

(i) On a two weekly cycle as follows:-

(I) In Week 1 from 10:00 am on Friday (commencing Friday 17 June 2011) until 5:00 pm on Sunday two days later;

(II) In Week 2 from 5:00 pm on Sunday (commencing 26 June 2011) until 5:00 pm on Monday the day after; and

(b) After M commences Preparatory School

(i) From after school on each second Thursday during school term until the commencement of school on the following Monday;

(ii) For half of each of the school holidays that are given by the school that the children attend and being the second half of those holidays in the year in which M commences his Prep year and each alternative year thereafter and being the first half of those holidays in the year in which M is in Grade 1 and each alternative year thereafter;

(iii) For the purposes of calculating the school holiday time that the said children are to spend with the father, the school holidays shall be considered to commence at 3:00 pm on the final day of school term and to conclude at 9:00 am on the first actual day of school term that the children are to attend and the children shall be returned to the mother after spending time with the father during the first half of the holidays at 5:00 pm on the day on which the exact half way point of the school holidays, so calculated, actually falls, and the children shall be delivered to the father to spend time with him during the second half of the holidays at 5:00 pm on the day on which the exact half way point of the school holidays, so calculated, actually falls; and

(i) For Eid days from 5:00 pm on the eve of the first day of each Eid until 5:00 pm on the first day of each Eid.

(ii) If the children do not otherwise spend time with the father pursuant to this order on the following days, then also as follows:-

(I) from 5:00 pm on the eve of Father’s Day each year until 5:00 pm on Father’s Day;

(II) for 3 hours on each of the said between the mother and the father, or failing agreement, as determined by the mother;

(III) for 3 hours on the father’s birthday between such times as shall be agreed between the mother and the father, or failing agreement, as determined by the mother.

That all changeovers at the commencement and conclusion of the times provided in this order for the said children to spend time with the father shall take place at the L Contact Centre when that Centre is open and operational at such times with each party bearing his and her own costs of the use of that Centre and, where that Centre is not open and operational at such times, then at C McDonalds, but after M commences Preparatory School the changeovers at the commencement and conclusion of the times the children spend with the father pursuant to this order shall take place at his school when changeovers are ordered to be at the commencement or conclusion of school but are otherwise to take place at C McDonalds.

That the parties shall within seven (7) days of the date of this order take all necessary steps to register, if not already, with the L Contact Centre and they shall, at all times when using the L Contact Centre, comply with the guidelines and rules set by the Centre for its use by parents.

10.

That notwithstanding other provisions of this order, the said children shall spend time with the mother as follows:-

(i) from 5:00 pm on the eve of Mother’s Day until 5:00 pm on Mother’s Day each year;

(ii) for at least 3 hours on the mother’s birthday between such times as shall be agreed, or failing agreement, as determined by the mother;

(iii) For at least 3 hours on each of the said children’s birthdays between such times as shall be agreed, or failing agreement, as determined by the mother

and the other provisions of this order shall yield to the provisions of this paragraph where there is conflict or inconsistency between those other provisions and the provisions of this paragraph.

11.

That the mother and the father can, during times that the children are in their respective care pursuant to this order, take the children interstate for periods of up to one week on up to two occasions each year and

(i) Such periods shall not be less than four months apart;

(ii) The parent who is travelling interstate with the children shall provide notice in writing of such proposed travel and a written itinerary of the proposed travel no less than four weeks prior to the departure and such information shall include the contact details for the children whilst they are travelling;

(iii) During such periods away the time spent with the other parent pursuant to this order shall be suspended.

General Parenting Provisions

12.

That the parents shall use a communication book to communicate with each other in respect of matters pertaining to the children and that book shall go between the parents with the children.

13.

That the mother and the father shall not denigrate the other parent or the other parent’s family to, or in front of, or within the hearing of, the children and each shall take all steps to prevent others from denigrating the other parent or the other parent’s family to, or in front of, or within the hearing of the children.

14.

That each of the mother and the father shall inform the other parent by means of the communication book of any medical condition, significant health issue or significant illness suffered by the children and also advise the other parent of the names and contact details of any medical practitioner or other allied health professional who sees the children and this order is sufficient authority for any treating medical practitioner or other allied health professional to release any medical information pertaining to the children to each of the parents.

15.

That the mother shall keep the father informed as to any day care provider, school or educational facility and extra-curricular activity provider that the children attend and this order is sufficient authority for any day care provider, school or other educational facility, extra-curricular activity provider to provide each of the parents with information, documents or photographs that they are lawfully able to provide about the children, any cost therefore being borne by the requesting parent.

Injunctions

16.

That the father is restrained from assaulting, harassing, stalking, abusing or coming into the immediate presence of the mother or any of the mother’s three daughters, S Gastana, K Gastana, and Z Gastana without the written consent of the mother first obtained

17.

That the father is restrained from entering or contacting the place of work of the mother or any of her said three daughters.

Parenting Orders Program

18.

That within six months of the date of this order the mother and the father shall each attend and complete a parenting orders program provided by Relationships Australia or Kinnections and each shall provide the other party and the Independent Children’s Lawyer with written proof of satisfactory completion of such a program.

19.

The Independent Children’s Lawyer is discharged upon receipt of evidence from the mother and the father that each has completed a parenting orders program.

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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