AKHTARI & ALGHAZARI - [2017] FamCA 820

FAMILY COURT OF AUSTRALIA

AKHTARI & ALGHAZARI

[2017] FamCA 820

FAMILY LAW – PRACTICE AND PROCEDURE – EVIDENCE – Where the wife is seeking a certificate under s 128 of the Evidence Act 1995 (Cth) for evidence in chief – Where authorities state that a certificate can be issued for evidence in chief – Certificate is issued.

FAMILY LAW – INJUNCTION – Where it is ex parte – Where the wife seeks an injunction pursuant to s 114 of the Family Law Act 1975 (Cth) – Where there is reference in the documents to threats or threatening behaviour from the husband and risks associated with people associated with him – Where the balance of prejudice favours granting of the application.

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 79, 114, 114AA

Cornwell v The Queen (2007) 231 CLR 260 Ferrall & Blyton (2000) FLC 93-054 Song & Ying (2010) 273 ALR 213
APPLICANT:	Ms Akhtari

RESPONDENT:

Mr Alghazari

FILE NUMBER:

SYC

5412

2017

DATE DELIVERED:

31 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

31 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

KD Holmes Solicitors

COUNSEL FOR THE RESPONDENT:

No appearance

Orders

A Certificate pursuant to s 128 of the Evidence Act (Cth) 1995 is issued in relation to the affidavit of the wife affirmed and filed 31 August 2017 as to paragraphs 78, 103-105 inclusive, 115-118 inclusive, 133 and 135-170 inclusive.
The proceedings are adjourned to the judicial duty list at 9.30 am on 18 September 2017 for hearing, if practicable and if sought by the parties, the wife’s application for interim orders contained in her Initiating Application filed 21 August 2017 including the continuation, if sought, of the orders made on an ex parte basis today.
The husband be personally served with a copy of the wife’s Initiating Application, her Financial Statement, her affidavit filed today and a copy of these orders by 6.00 pm on 1 September 2017.
Until further order, an order is made in terms of the orders sought at paragraph 5 of the interim orders sought in the wife’s application, as set out hereunder:
5. Pursuant to section 114 of the Act, the respondent, his servants and/or his agents be restrained from:
5.1Assaulting, molesting, harassing, threatening or otherwise interfering with the applicant.
5.2Engaging in conduct that in any way intimidates the applicant.
5.3Stalking the applicant.
5.4Coming within 500 metres of any property in which the applicant is living or working.
5.5Coming within 500 metres of the Suburb C Early Learning Centre.
The Court notes that that order is an order for the personal protection of the wife and of H born … 2015 and J born … 2016 and that as a result that order attracts the powers of arrest without warrant to a police officer pursuant to s 114AA of the Family Law Act 1975 (Cth).
The husband file and serve a Response, an affidavit in…

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 AKHTARI & ALGHAZARI

Details

AGLC: AKHTARI & ALGHAZARI [2017] FamCA 820
Case: [2017] FamCA 820
Decision Date: 31 August 2017

CaseChat Overview and Summary

In proceedings between the wife, AKHTARI, and the husband, ALGHAZARI, before Loughnan J, the wife sought a certificate under section 128 of the *Evidence Act 1995* (Cth) for evidence in chief, and an interim injunction pursuant to section 114 of the *Family Law Act 1975* (Cth). The application for the injunction was made ex parte.

The court was required to determine whether to issue a certificate under section 128 of the *Evidence Act* for specific paragraphs of the wife's affidavit, and whether to grant an interim injunction under section 114 of the *Family Law Act*. The latter involved considering the wife's claims of threats and risks associated with the husband and individuals connected to him.

Loughnan J reasoned that a certificate under section 128 of the *Evidence Act* could be issued for evidence in chief, and accordingly issued the certificate in relation to specified paragraphs of the wife's affidavit. Regarding the injunction, the court found that the balance of prejudice favoured granting the application, particularly in light of the references to threats and risks. The court also noted that the protective order made under section 114 attracted the powers of arrest without warrant under section 114AA of the *Family Law Act*.

The court ordered that a certificate under section 128 of the *Evidence Act* be issued for specified paragraphs of the wife's affidavit. An interim injunction was granted under section 114 of the *Family Law Act*, restraining the husband, his servants, and agents from assaulting, molesting, harassing, threatening, intimidating, stalking the applicant, or coming within 500 metres of her home, workplace, or a specific early learning centre. The proceedings were adjourned for a hearing on the wife's application for interim orders, including the continuation of the ex parte orders. The husband was ordered to be personally served with various documents and was required to file a Response and supporting affidavit.

Orders

Orders of the court

A Certificate pursuant to s 128 of the Evidence Act (Cth) 1995 is issued in relation to the affidavit of the wife affirmed and filed 31 August 2017 as to paragraphs 78, 103-105 inclusive, 115-118 inclusive, 133 and 135-170 inclusive.

The proceedings are adjourned to the judicial duty list at 9.30 am on 18 September 2017 for hearing, if practicable and if sought by the parties, the wife’s application for interim orders contained in her Initiating Application filed 21 August 2017 including the continuation, if sought, of the orders made on an ex parte basis today.

The husband be personally served with a copy of the wife’s Initiating Application, her Financial Statement, her affidavit filed today and a copy of these orders by 6.00 pm on 1 September 2017.

Until further order, an order is made in terms of the orders sought at paragraph 5 of the interim orders sought in the wife’s application, as set out hereunder:

5. Pursuant to section 114 of the Act, the respondent, his servants and/or his agents be restrained from:

5.1 Assaulting, molesting, harassing, threatening or otherwise interfering with the applicant.

5.2 Engaging in conduct that in any way intimidates the applicant.

5.3 Stalking the applicant.

5.4 Coming within 500 metres of any property in which the applicant is living or working.

5.5 Coming within 500 metres of the Suburb C Early Learning Centre.

The Court notes that that order is an order for the personal protection of the wife and of H born … 2015 and J born … 2016 and that as a result that order attracts the powers of arrest without warrant to a police officer pursuant to s 114AA of the Family Law Act 1975 (Cth).

The husband file and serve a Response, an affidavit in support and a financial statement if practicable by 6.00 pm on 14 September 2017.

Leave is granted to either party to apply in relation to the orders made today on giving 24 hours’ notice to the Court and to each other.

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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