Akhtar & Gaber (No. 2) - [2018] FamCAFC 176

FAMILY COURT OF AUSTRALIA

AKHTAR & GABER (NO. 2)

[2018] FamCAFC 176

FAMILY LAW – LEAVE TO APPEAL – Procedural orders – Application for leave to appeal from an order consolidating applications and fixing them for hearing – Leave refused.

FAMILY LAW – APPEAL – COSTS – Where the application for leave to appeal was wholly unsuccessful – Where the application was an abuse of process – Indemnity costs ordered.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 94AA
Family Law Regulations 1984 (Cth) reg 15A(2)
Family Law Rules 2004 (Cth) r 18.08

Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
D & D (Costs) (No.2) (2010) FLC 93-435; [2010] FamCAFC 64
Kohan and Kohan (1993) FLC 92-340
Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207

APPELLANT:

Mr Akhtar

RESPONDENT:

Ms Gaber

FILE NUMBER:

PAC

3652

2013

APPEAL NUMBER:

2018

DATE DELIVERED:

14 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Watts JJ

HEARING DATE:

14 September 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT ORDERS MADE:

19 February 2018

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr R Kouchoo solicitor

SOLICITOR FOR THE RESPONDENT:

N J Papallo Lawyers

Orders

The application for leave to appeal the orders of Foster J made on 19 February 2018 is dismissed.
That the appellant pay the respondent’s costs of and incidental to the application for leave to appeal on an indemnity basis in the sum of $3,777.72, such costs to be paid within 28 days of this order.

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 Akhtar & Gaber (No. 2) 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: EA 33 of 2018
File Number: PAC 3652 of 2013

Mr Akhtar

Appellant

And

Ms Gaber

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Aldridge J

Introduction

By an Amended Notice of Appeal filed on 5 April 2018, Mr Akhtar (“the appellant”) appeals from the following orders made by Foster J on 19 February 2018 in parenting proceedings between him and Ms Gaber (“the respondent”):
1.The father’s Application in a Case filed 25 May 2017 and the Application for…

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 Akhtar & Gaber (No. 2)

Details

AGLC: Akhtar & Gaber (No. 2) [2018] FamCAFC 176
Case: [2018] FamCAFC 176
Decision Date: 14 September 2018

CaseChat Overview and Summary

In the Family Court of Australia, Akhtar appealed against an order made by Foster J on 19 February 2018, which consolidated applications and fixed them for hearing. The court was required to determine whether Akhtar should be granted leave to appeal against this order and, if so, whether the appeal should proceed. Additionally, the court had to consider the costs implications of the appeal, given its outcome.

The primary legal issue before the court was whether Akhtar should be granted leave to appeal the procedural orders made by Foster J. This involved assessing whether the appeal had a reasonable chance of success and whether it was in the interests of justice to allow the appeal to proceed. Furthermore, the court had to consider the costs implications of the appeal, particularly in light of its wholly unsuccessful nature and the potential for an abuse of process.

The court found that Akhtar's application for leave to appeal was wholly unsuccessful, and that the appeal appeared to be an abuse of process. As such, the court refused Akhtar's application for leave to appeal. The court further found that the application was vexatious and an abuse of process, and ordered Akhtar to pay the respondent's costs of and incidental to the application for leave to appeal on an indemnity basis in the sum of $3,777.72. These costs were to be paid within 28 days of the order.

The court dismissed Akhtar's application for leave to appeal the orders of Foster J made on 19 February 2018 and ordered Akhtar to pay the respondent's costs of and incidental to the application for leave to appeal on an indemnity basis.

Orders

Orders of the court

The application for leave to appeal the orders of Foster J made on 19 February 2018 is dismissed.

That the appellant pay the respondent’s costs of and incidental to the application for leave to appeal on an indemnity basis in the sum of $3,777.72, such costs to be paid within 28 days of this order.

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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