Sahrawi & Hadrami

Case [2018] FamCAFC 170


FAMILY COURT OF AUSTRALIA

SAHRAWI & HADRAMI [2018] FamCAFC 170
FAMILY LAW – APPEAL – PARENTING – Where the primary judge found that the father behaved in a psychologically coercive manner to secure sex from the mother based upon words said in a recorded telephone conversation between the mother and the father – Where the father was not afforded procedural fairness to comment upon the primary judge’s interpretation of those words – Where another interpretation was available – Where this error led the primary judge to conclude that the presumption of equal shared parental responsibility did not apply and impacted upon s 60CC(2) and (3) considerations – Where the primary judge did not err in failing to make credibility findings - Where the primary judge erred in failing to make findings about whether the mother had fabricated allegations –Where the primary judge misstated the breadth of the test in M v M (1988) 166 CLR 69 – Where, given the error the primary judge made in finding that no determination could be made as to whether the mother had fabricated allegations, there is error in the primary judge’s consideration of the family consultant’s evidence and the Independent Children's Lawyer’s submissions which were based upon the proposition that such a finding would be made – Where the father made an application pursuant to s 67ZC of the Act for the return of the children to Country E without the court making final parenting orders – Where the primary judge did not err in not making a summary order for the return of the children without making parenting orders – Where the appeal is allowed.
Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAC, 67ZC
Evidence Act 1995 (Cth) ss 126, 140(2)

Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Carlson & Fluvium [2012] FamCA 32
Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317
Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; [2000] FCA 1084
Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155
Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Karim v Khalid (2007) 38 Fam LR 300; [2007] FamCA 1287

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Kwon v Lee (2006) FLC 93-287; [2006] FamCA 730
M v M (1988) 166 CLR 69; [1998] HCA 68
MWJ v The Queen (2005) 222 ALR 436; [2005] HCA 74
S v M (1984) 36 SASR 316
Sheldon & Weir [2011] FamCAFC 212

Sheldon & Weir (No.3) [2010] FamCA 1138

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588; [1999] HCA 3
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Stott & Holgar

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AGLC
Sahrawi & Hadrami [2018] FamCAFC 170
Case
[2018] FamCAFC 170
Decision Date

CaseChat Overview and Summary

In the matter of Sahrawi & Hadrami, the appeal was brought before the court to address the findings and orders made by the primary judge concerning the parenting arrangements for the children of the parties. The primary judge had concluded that the father exhibited psychologically coercive behavior towards the mother, which led to a determination that the presumption of equal shared parental responsibility did not apply. The father contested the findings, arguing that he was not given an opportunity to comment on the primary judge's interpretation of certain words used in a recorded telephone conversation. He also argued that the primary judge erred in not resolving whether the mother had fabricated allegations against him.

The court considered several legal issues, including whether the primary judge properly exercised procedural fairness by allowing the father to comment on the interpretation of the recorded conversation, and whether the primary judge correctly assessed the credibility of the parties and the relevance of the evidence provided by the Independent Children's Lawyer. The court found that the primary judge erred by not resolving the issue of fabricated allegations and by not explaining the relevance of certain evidence. Additionally, the court rejected the notion that the primary judge was obligated to make general credit findings.

The appeal was ultimately allowed, and the orders made by the primary judge were set aside. The case was remitted to the Family Court of Australia for rehearing by a different judge. The court granted costs certificates to both parties, recognizing the costs incurred during the appeal and the rehearing process. Pending the rehearing, the current parenting arrangements were maintained, with the children living with the mother and the father having specified times to spend with them. The court emphasized the importance of ensuring that any allegations of violence or abuse are properly investigated and determined in the best interests of the children.

Orders

Orders of the court

1.

The appeal is allowed.

2.

The orders made by Gill J on 17 January 2018 are set aside.

3.

The matter is remitted to the Family Court of Australia for rehearing by a judge other than Gill J.

4.

The Court grants to the appellant a costs certificate pursuant to the provisions of 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.

5.

The Court grants to the respondent 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.

6.

The Court grants to the appellant and the respondent costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the appellant and the respondent in respect of the costs incurred by them in relation to the rehearing.

7.

Pending further order:

(a) The father and mother have equal shared parental responsibility for Child B (“B”) born … 2004, Child C (“C”) born … 2008 and Child D (“D”) born … 2016, (collectively “the children”).

(b) The children shall live with the mother.

(c) In the event that the father and mother are living in the same country, the children shall spend time with the father as follows:

(i) During school term time:

A. With the children each Tuesday from 4.00 pm until 6.00 pm;

B. With B and C each alternate weekend commencing the first weekend of each term, from after school on Friday until the commencement of school the following week;

C. With B and C on the other weekend on Saturday from 10.00 am until 6.00 pm;

D. With D, each Saturday 10.00 am until 6.00 pm;

(ii) During school holiday time for the first seven days of each school holiday period, commencing after school on the last day of term and ending at 3.00 pm on the 7th full day of the holidays;

(d) For the purposes of this order changeover shall occur at C’s school when he is in attendance at school and otherwise at a location as agreed or, failing agreement, within the Y Centre.

(e) Regardless of where the father and mother are living, the father may spend time with the children by electronic communication with the children each Monday, Thursday and Sunday (unless they are otherwise with him) at 5pm in the time zone of where the children are living.

(f) The mother is to facilitate the electronic communication with the children by the father by:

(i) Providing a means for audio visual electronic communication for the children to use;

(ii) Providing the father with current details to enable the use of the electronic communication;

(iii) Encouraging the children to communicate with the father on each occasion; and

(iv) Minimising sources of distraction from the children during the communication.

(g) The parties are at liberty to alter the arrangements for the time to be spent with the children by agreement in writing.

(h) Each party shall keep the other informed about any mobile telephone number on which they may be contacted.

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

In the context of allegations similar to those made in this case the Full Court in Amador v Amador (2009) 43 Fam LR 268 said:[94] A finding by a trial judge in a children’s case under the Act that a party has assaulted another party or a person can have significant impact on the findings made on the matters the court is required to consider under s 60CC of the Act. The provisions of ss 60CC(2)(b), 60CC(3)(f),(i),(j) and (m) would require a consideration of the impact of any finding of fact as to violence perpetrated by a party seeking a children’s order.[95] The best interests of a child the subject of an application for a parenting order must require that the court determine relevant allegations of violence where that can be done. The consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare. The more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation. As stated earlier we regard an allegation of rape by the father of the mother to be a very serious allegation which should, if possible, be determined.[96] It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse or sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the court to make findings where the evidence enables that to be done.(Emphasis added) We accept that the primary judge erred by not resolving the issue and by not explaining why the evidence relied upon by the ICL was not relevant or why it did not establish that the mother’s allegations were fabricated. Thus we consider that these grounds have been established. We turn finally to the father’s submission that the primary judge’s reluctance to determine these issues would have been overcome if he had made general credit findings or made “an integrated assessment of credibility”. We immediately reject the proposition, to the extent it was made, that a trial judge is obliged, in any particular case, to make general credit findings. No authority was cited in support of that proposition. Such a notion is contrary to the well-established principle that a judge can accept some parts of a witness’s evidence and reject others. In Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201 (“Dublin”), Lord Blackburn said:The jurors are not bound to believe the evidence of any witness; and they are not bound to believe the whole of the evidence of any witness. They may believe that part of a witness’ evidence which makes for the party who calls him, and disbelieve that part of his evidence which makes against the party who calls him …

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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