Abadi and Sokulsky - [2020] FamCA 64

FAMILY COURT OF AUSTRALIA

ABADI & SOKULSKY

[2020] FamCA 64

FAMILY LAW – PRACTICE AND PROCEDURE – consideration of discretionary order under s 102NA – Application in a Case for discharge of Independent Children’s Lawyer – Application in a Case seeking subpoena for expert to appear in person – Application for production of Federal Circuit Court file – Application for adjournment of trial.

Family Law Act 1975 (Cth) s 102NA, 102NB

APPLICANT:

Mr Abadi

RESPONDENT:

Ms Sokulsky

INDEPENDENT CHILDREN’S LAWYER:

Ms Orcyzkowski

FILE NUMBER:

SYC

3215

2010

DATE DELIVERED:

4 February 2020

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

4 February 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-representing

COUNSEL FOR THE RESPONDENT:

Mr Harper

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini Dunn

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Bolan Legal Family Lawyers

Orders

I decline to make an order under s 102NA.
The Application in a Case filed on 31 January 2020 for the discharge of the Independent Children’s Lawyer is refused and the Application is dismissed.
The Application in a Case seeking a subpoena to issue for Dr C to appear in person at the trial of this matter is refused.
The Application for the Federal Circuit Court file of Aluru & Sokulsky CAC746/2016 is refused and the Application is dismissed.
The Application for Adjournment of the trial is refused and the Application is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abadi & Sokulsky has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 3215 of 2010

Mr Abadi

Applicant

And

Ms Sokulsky

Respondent

EXTEMPORE REASONS FOR JUDGMENT

Section 102NA

Mr Abadi has recently become unrepresented having, for the preparation of the matter for trial, been represented by a legal firm.
In the material filed on behalf of the Mother there are a series of what have been described as historical, and what have also been described as serious, allegations of family violence made against Mr Abadi. They include acts of physical violence, acts of intimidation and acts of stalking. The Mother has described herself as having behaved so under duress imposed by Mr Abadi to the extent that she says that she paid the sum of $70,000 towards his payment of debt. It may be taken that the allegations of family violence are serious.
Under those circumstances s 102NA of the Family Law Act 1975 (Cth) becomes applicable.
I am advised by Ms Sokulsky’s counsel, and accept, that this is not a…

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.

Continue reading Abadi and Sokulsky

Details

AGLC: Abadi and Sokulsky [2020] FamCA 64
Case: [2020] FamCA 64
Decision Date: 4 February 2020

CaseChat Overview and Summary

In the matter of *Abadi and Sokulsky*, heard before Gill J, the proceedings concerned a dispute between the parties, with applications made for the discharge of an Independent Children’s Lawyer, the issuance of a subpoena for a Dr C to appear at trial, access to a Federal Circuit Court file, and an adjournment of the trial.

The court was required to determine whether to grant these various applications. Specifically, the court had to consider the grounds for discharging an Independent Children’s Lawyer, the necessity and appropriateness of compelling Dr C's attendance at trial via subpoena, the relevance and accessibility of the Federal Circuit Court file, and the justification for adjourning the scheduled trial.

Gill J declined to make an order under s 102NA of the relevant legislation. The applications for the discharge of the Independent Children’s Lawyer, the issuance of a subpoena for Dr C, access to the Federal Circuit Court file, and the adjournment of the trial were all refused and dismissed. The reasons for these refusals were not detailed in the provided text, but the outcome indicates that the court found no sufficient grounds to support any of the applications made by the parties.

Orders

Orders of the court

I decline to make an order under s 102NA.

The Application in a Case filed on 31 January 2020 for the discharge of the Independent Children’s Lawyer is refused and the Application is dismissed.

The Application in a Case seeking a subpoena to issue for Dr C to appear in person at the trial of this matter is refused.

The Application for the Federal Circuit Court file of Aluru & Sokulsky CAC746/2016 is refused and the Application is dismissed.

The Application for Adjournment of the trial is refused and the Application is dismissed.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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