SALAH & SALAH
[2015] FamCAFC 199
•23 October 2015
FAMILY COURT OF AUSTRALIA
| SALAH & SALAH | [2015] FamCAFC 199 |
| FAMILY LAW – APPEAL – Application for expedition of appeal – Where the mother seeks to expedite an appeal against interim parenting orders – Where the mother alleges that the father was violent and abusive to her during the relationship – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Whether the interim orders currently in place put the children at risk if the mother’s allegations are later substantiated – Application allowed. |
| Family Law Act 1975 (Cth) Family Court Rules (2004) r 12.10A |
| Moxon & Moxon [2010] FamCAFC 67 |
| APPLICANT: | Ms Salah |
| RESPONDENT: | Mr Salah |
| FILE NUMBER: | PAC | 2786 | of | 2015 |
| APPEAL NUMBER: | EA | 152 | of | 2015 |
| DATE DELIVERED: | 23 October 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 20 October 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 August 2015 |
| LOWER COURT MNC: | [2015] FCCA 2188 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Burreket of Broun Abrahams Burreket |
| SOLICITOR FOR THE RESPONDENT: | Mr Parker of Swaab Attorneys |
Orders
The hearing of the appeal against the orders of Judge Dunkley made on
13 August 2015 be expedited and listed for hearing at the first available Full Court in Sydney with the parties to be notified of the time and date of such Full Court by the Appeal Registrar.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Salah & Salah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 152 of 2015
File Number: PAC 2786 of 2015
| Ms Salah |
Applicant
and
| Mr Salah |
Respondent
REASONS FOR JUDGMENT
Ms Salah (“the mother”), by her Application filed on 10 September 2015, seeks expedition of an appeal lodged by her against interim parenting orders made by Judge Dunkley on 13 August 2015. Mr Salah (“the father”) neither supports nor opposes the application.
His Honour’s parenting orders concern the parties’ three children, A (born mid 2013), B (born 2012) and C (2011). The orders provided for the mother to have sole parental responsibility for A but that she and the father have equal shared parental responsibility for the other two children. The orders further provide that the three children live with the mother and his Honour made provision for the children to spend time with the father.
It is uncontroversial that, sadly, A has a number of physical and developmental difficulties which require ongoing medical treatment and constant supervision.
The parties married in 2010 and finally separated in May or June 2015. On separation, the children moved with the mother to live with the maternal grandparents.
The mother sought interim parenting orders and injunctions by an Initiating Application filed on 12 June 2015 to which the father responded on
27 July 2015 and in which he too sought interim parenting orders. Both parties filed Notices of Risk in relation to the children.
Before the matter was heard, a Minute of Consent orders was delivered to the judge and by which the parties intended his Honour to make orders pending the resolution of the interim applications. The orders provided for the children to live with the mother and spend time with the father and that the father’s time with the children be conducted in the presence of his sister or one of his parents. Those orders were made by consent on 8 July 2015.
The applications for interim orders were heard by the judge on 6 August 2015.
His Honour’s interim orders do not continue the requirement that the father’s time with the children be in the presence of another person.
The thrust of the application for expedition of the mother’s appeal rested in the allegations of family violence made by her against the father and his Honour’s treatment of those allegations.
The wife contended that during the marriage the father had been emotionally and physically violent to her and the children and that much of his violence towards her had been in the presence of the children. She further asserted that the husband had been emotionally abusive towards her and would not permit her to have access to money or to contact her family.
The father’s evidence was that, while the relationship had its “ups and downs”, he denied any physical violence towards the mother although he conceded that there were occasions when he and the mother had heated arguments which resulted in him shouting. He said that that police had attended their house “on a number of occasions”.
His Honour noted under the heading “Other Asserted Evidence – subject to conjecture” the mother’s allegations of “… significant family violence of a coercive and controlling nature being perpetrated on her by the father at times in the presence of the children” [31]. He noted the father’s denials and referred to the evidence that on 7 June 2015 the police were called to the parties’ home and said “… The circumstances giving rise to this incident are not agreed, although the police involvement is conceded” [36].
His Honour said:
58. The evidence lead as to alleged family violence made by each parent is not capable of sustaining a finding at this interim stage of proceedings. In circumstances of conjecture given no other evidence. The presumption for equal shared parental responsibility is still applicable.
He further found in this respect:
69. Findings with respect to whether either party perpetrated family violence cannot be made at this interim stage given the conflicted evidence. The civil standard of proof is met by neither.
70. As such and for the same reasons the need for the father’s time with the children to be either in the “presence of” or “supervised by” another adult is not made out. It is not needed for the purpose of section 60CC(2)(b).
Thus it was contended on the application for expedition that his Honour erred by, in effect, ignoring the allegations of violence on the basis that they were contested. It was further argued that in so doing, the interim orders potentially left the children in a position of risk if the mother’s allegations were later substantiated.
Relevant Principles
Section 94(2D) of the Family Law Act 1975 (Cth) (“the Act”) provides for the expedition of appeals although no criteria or considerations for making that determination are provided. Recourse is often had to rule 12.10A of the Family Court Rules (2004) which address applications for expedition of hearings before a judge (see Moxon & Moxon [2010] FamCAFC 67).
The considerations thus are:
·Whether the applicant has acted reasonably and without delay;
·Whether the application has been brought on expeditiously;
·Whether there is any prejudice to the respondent; and
·Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment.
Rule 12.10A(4) provides a definition of a “relevant circumstance”, one of which is:
(e)whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed); …
It was to this last matter that the submissions of the mother were directed.
Given the issues sought to be raised on the appeal, I am satisfied that this is a matter which should be expedited.
Costs
Although the mother sought an indulgence from the court by way of the application for expedition, having regard to her financial circumstances: that she works a few hours a week and has otherwise no access to funds and that while the father pays the mortgage and outgoings on the property in which she and the children live, she receives no direct financial support from the father, I do not propose to make an order that the mother pay the father’s costs of the application.
I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
23 October 2015.
Associate:
Date: 23 October 2015
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