SAFIR & SAFIR - [2016] FamCAFC 3

FAMILY COURT OF AUSTRALIA

SAFIR & SAFIR

[2016] FamCAFC 3

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against interim parenting orders – Where orders made for the children to spend time with the father during the day but not overnight – Finding that the children were exposed to an unacceptable risk of harm if they spent time with the father overnight – Assessment of magnitude of the risk of exposure – Where trial judge found “a risk” meant there was an unacceptable risk – Assessment of risk of harm said to result from risk of exposure – Where finding of unacceptable risk of harm at night is flawed and was not available on the evidence – Appeal allowed – Where it is appropriate that the court re-exercise the discretion – Order that pending further order the children spend time with the father including overnight.

FAMILY LAW – APPEAL – COSTS – Where the appeal succeeded on an error of law – Costs certificates ordered pursuant to sections 6 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act 1975 (Cth): ss 60CC(2)(a), (2)(b), (2A)
Federal Proceedings (Costs) Act 1981 (Cth): ss 6, 9

APPELLANT:

Mr Safir

RESPONDENT:

Ms Safir

FILE NUMBER:

PAC

559

2015

APPEAL NUMBER:

140

2015

DATE DELIVERED:

28 January 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

2 December 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 July 2015

LOWER COURT MNC:

[2015] FCCA 2079

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Barnett

SOLICITOR FOR THE APPELLANT:

Turner Freeman Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Gilles

SOLICITOR FOR THE RESPONDENT:

Shorehills Legal Solicitors

Orders

The appeal be allowed.
Set aside Orders 2, 3(c), 3(d) and 3(e) of the orders dated 23 July 2015.

Pending further order

That the children, A Safir born on … 2005 and B Safir born on … 2009 (“the children”) spend time with the father as follows:
(a)during school term each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday (commencing on the first weekend when pursuant to the orders dated 23 July 2015 the children were due to spend time with the father);
(b)each alternate Thursday from after school until before school on the following Friday;
(c)from 10.00 am Good Friday 25 March 2016 until 5.00 pm Easter Saturday;
(d)during school holidays each week from 9.00 am Sunday until 9.00 am Wednesday; and
(e)at such other times as the parties agree.
There be no order as to costs.
That the Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (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 the appeal.
The Court grants to the respondent mother a costs certificate…

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: SAFIR & SAFIR [2016] FamCAFC 3
Case: [2016] FamCAFC 3
Decision Date: 28 January 2016

CaseChat Overview and Summary

In this case, the father, an appellant, challenged interim parenting orders made in the Family Court of Australia. The primary issue was whether the children should spend time with the father overnight, with the trial judge ruling against overnight stays due to an unacceptable risk of harm. The father contested this decision, arguing that the risk assessment was flawed and not supported by the evidence. The court was required to determine whether the trial judge's finding of an unacceptable risk of harm was justified and whether the risk of harm resulted from the risk of exposure.

The appeal court found that the trial judge's interpretation of "a risk" as an unacceptable risk was erroneous. The court held that the trial judge's assessment of the risk of harm resulting from exposure was flawed and not supported by the evidence. Consequently, the appeal was allowed, and the orders were set aside. The court then exercised its discretion to make new interim orders for the children to spend time with the father, including overnight stays, pending further order. The court also granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth), allowing the Attorney-General to authorise payments for the costs incurred during the appeal.

Orders

Orders of the court

The appeal be allowed.

Set aside Orders 2, 3(c), 3(d) and 3(e) of the orders dated 23 July 2015.

Pending further order

That the children, A Safir born on … 2005 and B Safir born on … 2009 (“the children”) spend time with the father as follows:

(a) during school term each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday (commencing on the first weekend when pursuant to the orders dated 23 July 2015 the children were due to spend time with the father);

(b) each alternate Thursday from after school until before school on the following Friday;

(d) during school holidays each week from 9.00 am Sunday until 9.00 am Wednesday; and

(e) at such other times as the parties agree.

There be no order as to costs.

That the Court grants to the appellant father a costs certificate pursuant to 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 the appeal.

The Court grants to the respondent mother 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 costs incurred by her in relation to the appeal.

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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