AKBARI & AKBARI - [2020] FamCAFC 309

FAMILY COURT OF AUSTRALIA

AKBARI & AKBARI

[2020] FamCAFC 309

FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Family violence – Where the father challenges the primary judge’s findings as to sexual assault – Where the mother’s evidence was capable of establishing sexual assault to the requisite standard – Weight challenge – Whether excessive weight was placed on the mother’s evidence despite inconsistencies in it – Adequate reasons – Where the primary judge’s findings were open on the evidence – Appeal dismissed.

Evidence Act 1995 (Cth) s 140

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317
Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Sahrawi & Hadrami (2018) FLC 93–857; [2018] FamCAFC 170

APPELLANT:

Mr Akbari

RESPONDENT:

Ms Akbari

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid ACT

FILE NUMBER:

MLC

10768

2010

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

11 December 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Aldridge, Watts & Austin JJ

HEARING DATE:

21 October 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 December 2019

LOWER COURT MNC:

[2019] FCCA 3752

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Howard

SOLICITOR FOR THE APPELLANT:

Lexicon Lawyers

THE RESPONDENT:

Self-represented litigant

THE INDEPENDENT CHILDREN’S LAWYER:

Did not participate in the appeal

Orders

The appeal be 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 Akbari & Akbari 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 13 of 2020
File Number: MLC 10768 of 2010

Mr Akbari

Appellant

And

Ms Akbari

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

Mr Akbari (“the father”) appeals against final parenting orders made by a judge of the Federal Circuit Court of Australia on 23 December 2019 in proceedings between him and Ms Akbari (“the mother”). On that day, orders were made for the mother to have sole parental responsibility for the parties’ only child, X, born in 2006 (“the child”). The child was to live with the mother in Canberra (and not in Adelaide as sought by the father) and…

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 AKBARI & AKBARI

Details

AGLC: AKBARI & AKBARI [2020] FamCAFC 309
Case: [2020] FamCAFC 309
Decision Date: 11 December 2020

CaseChat Overview and Summary

In the matter of Akbari & Akbari, the appellant, the father, sought to appeal the final parenting orders made by the Family Court of Australia. The central dispute revolved around allegations of family violence, specifically sexual assault by the father against the mother. The primary judge had found in favour of the mother and made orders that favoured her in the parenting arrangements. The father contested the primary judge's findings on the basis that the evidence did not support the conclusion that the sexual assault had occurred. Additionally, the father argued that the primary judge had placed excessive weight on the mother's evidence despite its inconsistencies.

The legal issues before the court included whether the mother's evidence was sufficient to establish the sexual assault to the requisite standard of proof, and whether the primary judge had erred in the weight given to that evidence. The court had to determine if the primary judge's findings were open on the evidence and whether the appeal was justified. The father's challenge was centred on the inconsistencies in the mother's testimony and the potential overvaluation of her account by the primary judge. The court examined the evidence presented and the reasoning of the primary judge to assess whether the appeal had merit.

The court concluded that the primary judge's findings were open on the evidence and that the mother's evidence was capable of supporting the conclusion of sexual assault. The inconsistencies in the mother's testimony did not undermine the overall credibility of her account to the extent that it warranted a different outcome. The court found that the primary judge had provided adequate reasons for the findings made and that there was no basis to interfere with those findings on appeal. Consequently, the appeal was dismissed. The court confirmed that the orders made by the primary judge would stand as the final parenting orders.

Orders

Orders of the court

Orders

1. The appeal be 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 Akbari & Akbari has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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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