Aheb and Aheb (No. 3) - [2009] FamCA 524

FAMILY COURT OF AUSTRALIA

AHEB & AHEB (NO. 3)

[2009] FamCA 524

FAMILY LAW – PROPERTY – Application to re-open – COSTS

Family Law Act 1975 (Cth)

Murray v Figge (1974) 4 ALR 612
Re Australian Meat Industry Employees Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491
Summitt v Summitt (re-opening) [2009] FamCA 365
Gelley v Gelley [1992] FLC 92-290
Smith v New South Wales Bar Association (1992) 176 CLR 256
Urban Transport Authority v Nsuiser (1992) 28 NSWLR 471
EB v CT (No 2) [2008] QFC 306

APPLICANT:

Ms Aheb

RESPONDENT:

Mr Aheb

FILE NUMBER:

MLF

2471

2006

DATE DELIVERED:

12 June 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Murphy J

HEARING DATE:

2 – 4 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D. Carlile

SOLICITOR FOR THE APPLICANT:

Jane Baldwin

COUNSEL FOR THE RESPONDENT:

Ms O Nikou SC

SOLICITOR FOR THE RESPONDENT:

JK Lawyers & Co

Orders

The Application in a Case filed by the Husband on 11 June 2009 is dismissed.
The Husband pay the Wife’s costs of today fixed in the sum of $3500.00, payable as an amount additional to any amount otherwise ordered to be paid to her pursuant to the orders made consequent to the trial in these proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Aheb & Aheb (re-Opening) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2471 of 2006

MS AHEB

Applicant Husband

And

MR AHEB

Respondent Wife

EX TEMPORE

REASONS FOR JUDGMENT

In November of last year, I commenced hearing the trial of this action as a judge visiting this registry from another registry. The trial did not conclude at its initial hearing and was scheduled to be continued at the earliest opportunity upon which I could again travel to this registry. That resumed hearing concluded before me on 4 June. Judgement was reserved.
The husband was cross‑examined extensively on each of those two separate occasions.
Yesterday, a week after the conclusion of the second part of the trial, an application was made on behalf of the husband which, in terms, seeks an order that, "Leave of this Honourable Court be granted to reopen the case in order to lead evidence of the expert witness, neuropsychologist, Ms [V]."
An unsealed copy of that application and an accompanying affidavit was served upon the solicitors of the wife yesterday and the matter was listed for urgent hearing before me this morning.
The application was supported by an affidavit by the solicitor for the husband, Ms Khoo. It is significant, I think, to summarise the terms of that affidavit.
At paragraph 2, Ms Khoo deposes among other things that she has had "limited opportunity to interview my client, [Mr Aheb], who is the respondent husband in this application, in person in order to prepare his family law matter for trial …"
The husband, on any view of…

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 Aheb and Aheb (No. 3)

Details

AGLC: Aheb and Aheb (No. 3) [2009] FamCA 524
Case: [2009] FamCA 524
Decision Date: 12 June 2009

CaseChat Overview and Summary

In *Aheb and Aheb (No. 3)*, Murphy J of the Family Court of Australia considered an application filed by the Husband on 11 June 2009. The precise nature of the dispute is not detailed in the provided text, but it arose in the context of proceedings between the Husband and Wife.

The central legal issue before the court was whether to grant the Husband's application filed on 11 June 2009. The court was required to determine the merits of this application and make appropriate orders.

Murphy J dismissed the Husband's application. In addition to dismissing the application, the court ordered the Husband to pay the Wife's costs of the hearing, fixed at $3500.00. These costs were to be paid in addition to any costs already ordered to be paid to the Wife as a consequence of the trial in the proceedings.

Orders

Orders of the court

The Application in a Case filed by the Husband on 11 June 2009 is dismissed.

The Husband pay the Wife’s costs of today fixed in the sum of $3500.00, payable as an amount additional to any amount otherwise ordered to be paid to her pursuant to the orders made consequent to the trial in these proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.