Salah & Salah

Case [2016] FamCAFC 100

FAMILY COURT OF AUSTRALIA

SALAH & SALAH [2016] FamCAFC 100

FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders – Where the trial judge failed to give sufficient weight to issues of family violence and failed to have regard to and apply s 61DA(3) of the Family Law Act 1975 (Cth) – Where interim parenting orders providing for the respondent’s time with the children to be supervised had been made by consent shortly before the interim hearing – Where the trial judge made interim orders removing the need for supervision – Whether the trial judge erred in failing to give adequate reasons – Appeal allowed.

FAMILY LAW – APPEAL – COSTS – Costs certificates – Where the trial judge made material errors of law – Where it is appropriate to order a costs certificate to both parties – Costs certificates granted.

Family Law Act 1975 (Cth) ss 60CC(2)(b), 60CG, 61DA, 64B
Federal Proceedings (Costs) Act 1981 (Cth)
Eaby & Speelman (2015) FLC 93-654
Goode and Goode (2006) FLC 93-286
SS & AH [2010] FamCAFC 13
Treloar & Nepean (2009) FLC 93-417
APPELLANT: Ms Salah
RESPONDENT: Mr Salah
FILE NUMBER: PAC 2786 of 2015
APPEAL NUMBER: EA 152 of 2015
DATE DELIVERED: 17 June 2016
PLACE DELIVERED: Brisbane
PLACE HEARD: Sydney
JUDGMENT OF: May, Ainslie-Wallace & Cronin JJ
HEARING DATE: 8 December 2015
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 13 August 2015
LOWER COURT MNC: [2015] FCCA 2188

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Richardson SC
SOLICITOR FOR THE APPELLANT: Broun Abrahams Burreket
COUNSEL FOR THE RESPONDENT: Mr Millar
SOLICITOR FOR THE RESPONDENT: Swaab Attorneys

Orders

  1. The appeal be allowed.

  2. The orders made on 13 August 2015 are set aside and the matter is remitted for rehearing by a judge other than Judge Dunkley.

It is Ordered until Further Order:

  1. That the mother be authorised to make urgent health decisions concerning [the child A] provided the mother will immediately contact the father to inform him upon becoming aware of any health issue and, where appropriate, will consult with the father regarding any such issue and if no agreement is reached between the mother and father the mother shall make the final decision and advise the father of the decision about any such issue.

  2. That the children live with the mother.

  3. That the father spend time with [C] and [B] at all times as may be agreed in writing (including by text message or email), but failing agreement, as follows:

    (a)each alternate weekend (commencing 27 June 2015) from 12 midday Saturday until 4pm Sunday; and

    (b)each alternate Wednesday (commencing 1 July 2015) from after daycare/preschool until 7pm that day.

    (c)that unless otherwise agreed the father or his nominee shall be responsible for collecting [C] and [B] from [X Facility] at 12 midday on Saturdays and directly from pre-kindy/daycare on Wednesdays at the commencement of his time with them and for delivering the children to the mother’s residence at the conclusion of his…

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Salah & Salah [2016] FamCAFC 100
Case
[2016] FamCAFC 100
Decision Date

CaseChat Overview and Summary

The appeal was brought by the mother against the interim parenting orders made by the trial judge in relation to the children of the marriage. The mother argued that the trial judge had failed to give sufficient weight to issues of family violence and had not properly considered section 61DA(3) of the Family Law Act 1975 (Cth). The court was required to determine whether the trial judge had erred in failing to give adequate reasons for the interim parenting orders, particularly in light of the prior consent orders that provided for supervised time with the children.

The court found that the trial judge had indeed erred in not giving sufficient weight to the issues of family violence and in not applying section 61DA(3) of the Family Law Act. The court held that the trial judge had not adequately explained why the supervised contact provisions were removed. The appeal was allowed, and the interim orders were set aside. The matter was remitted for rehearing by a different judge. The court also granted costs certificates to both parties for the appeal and the rehearing, reflecting the material errors of law made by the trial judge.

Orders

Orders of the court

1.

The appeal be allowed.

2.

The orders made on 13 August 2015 are set aside and the matter is remitted for rehearing by a judge other than Judge Dunkley.

It is Ordered until Further Order:

3.

That the mother be authorised to make urgent health decisions concerning [the child A] provided the mother will immediately contact the father to inform him upon becoming aware of any health issue and, where appropriate, will consult with the father regarding any such issue and if no agreement is reached between the mother and father the mother shall make the final decision and advise the father of the decision about any such issue.

4.

That the children live with the mother.

5.

That the father spend time with [C] and [B] at all times as may be agreed in writing (including by text message or email), but failing agreement, as follows:

(a) each alternate weekend (commencing 27 June 2015) from 12 midday Saturday until 4pm Sunday; and

(b) each alternate Wednesday (commencing 1 July 2015) from after daycare/preschool until 7pm that day.

(c) that unless otherwise agreed the father or his nominee shall be responsible for collecting [C] and [B] from [X Facility] at 12 midday on Saturdays and directly from pre-kindy/daycare on Wednesdays at the commencement of his time with them and for delivering the children to the mother’s residence at the conclusion of his time with them.

(d) From 10:00am until 4:00pm each Christmas Day in odd numbered years;

(e) From 10:00am until 4:00pm each Christmas Eve in even numbered years

(f) from 10:00am until 4:00pm on Good Friday in even numbered years;

(g) from 10:00am until 4:00pm on Easter Sunday in odd numbered years;

(h) on the father’s birthday from 10:00am until 5:00pm.

6.

That the father spend time with [A] at all times as may be agreed in writing (including by text message or email), but failing agreement, as follows:

(a) each alternate weekend (commencing 27 June 2015) from:

(i) 12 midday Saturday until 3:00pm Saturday; and

(ii) From 11am Sunday until 4:00pm Sunday.

(b) each alternate Wednesday (commencing 1 July 2015) from 4:00pm until 7:00pm;

(c) From 10:00am until 4:00pm each Christmas Day in odd numbered years;

(d) From 10:00am until 4:00pm each Christmas Eve in even numbered years

(e) From 10:00am until 4:00pm on Good Friday in even numbered years;

(f) From 10:00am to 4:00pm on Easter Sunday in odd numbered years;

(g) On the father’s birthday from 10:00am to 5:00pm.

(h) The father or his nominee shall be responsible for collecting [A] from [X Facility] on Saturdays and from church on Sundays and from the mother’s residence on Wednesdays at the commencement of his time with [A] and he shall be responsible for delivering [A] to the mother’s residence at the conclusion of his time with [A].

(i) The father undertakes to administer all medication to [A] as directed by his doctors and/or the mother and to confirm via text message to the mother when that medication has been administered.

7.

That without admissions the parties agree that either one of the children’s paternal grandparents and/or the paternal aunt…will be present during the father’s time with the children and will assist/facilitate the changeovers between the parties.

8.

That the children spend time with the Father from 10.00am to 5.00pm on Father’s Day and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.

9.

That the children spend time with the Mother from 10.00am to 5.00pm on Mother’s Day and that any provision under this order that is inconsistent with this paragraph be suspended.

10.

That the children spend equal time with the Mother and the Father on each of the children’s birthdays, at times to be agreed between the Mother and the Father, and failing agreement, the children shall spend time with the Father from 4:00pm until 7:00pm on those birthdays and the Mother at all other times on those days; and that any provision of time under this order that is inconsistent with this paragraph be suspended.

(Specific issues)

11.

That each party is hereby authorised to obtain from the children’s daycare/preschool/school all notices, letters, school reports and invitations and to attend functions, parent/teacher interviews or other activities to which parents are invited.

12.

That the mother and father each be at liberty to telephone the children and to receive telephone calls from the children at least once per day between 4pm and 6pm when the children are in the other parent’s care.

13.

That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.

14.

That the parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the children.

15.

That the parties encourage and not undermine each child’s relationship with the other party.

16.

That [C] and [B] may continue to attend upon their treating psychologist for such future appointments as are recommended by their GP provided the mother must inform the father of the appointments and confirm his availability to attend such appointments, and both the mother and the father be entitled to attend and/or facilitate the children’s attendance at such appointments.

17.

That each of the parties be restrained from using physical discipline on the children and shall use their best endeavours from permitting any third party to do so.

Airport Watch List

18.

That neither party remove the children from their current school/daycare or from the current extra-curricular activities without the other’s consent.

19.

That until further order each party, [MR SALAH] born … 1985 and [MS SALAH] born … 1987, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child/children [C] born [in] 2011, [B] born [in] 2012 and [A] born [in] 2013 from the Commonwealth of Australia;

20.

AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, or until the Court orders its removal.

21.

That the parties undergo a post-separation parenting course forthwith.

22.

That the father deliver and deposit the passports to the court forthwith.

It is Further Ordered:

23.

The Court grants to the appellant mother 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 mother in respect of the costs incurred by the appellant mother in relation to the appeal against the interim parenting orders made on 13 August 2015.

24.

The Court grants to the respondent father 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 father in respect of the costs incurred by the respondent father in relation to the appeal against the interim parenting orders made on 13 August 2015.

25.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by them in relation to the re-hearing ordered.

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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