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) |
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- AGLC
- Sahrawi & Hadrami [2018] FamCAFC 170
- Case
- [2018] FamCAFC 170
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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