Amari & Qureshi - [2017] FamCAFC 122

FAMILY COURT OF AUSTRALIA

AMARI & QURESHI

[2017] FamCAFC 122

FAMILY LAW – APPEAL – Final parenting orders – Where the appellant claims a denial of procedural fairness when not provided with an interpreter – Whether the primary judge made errors of fact – Whether the primary judge erred in not making certain findings – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the further evidence is irrelevant or contentious – Application in an appeal partly granted.

FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful – Where costs are sought by the Independent Children’s Lawyer – Application for costs dismissed.

Evidence Act 1995 (Cth) s 30
Family Law Act 1975 (Cth) ss 60CC, 65DAA, 68LA(2)(b), 68LA(5), 93A(2), 117
Family Law Rules 2004 (Cth) rr 15.59, 22.45(2)(a)(i)

Blanding & Blanding (2016) 55 Fam LR 218
CDJ v VAJ (1998) 197 CLR 172
Cucu v District Court (NSW) (1994) 73 A Crim R 240
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Kioa v West (1985) 159 CLR 550
Metwally v University of Wollongong (1985) 60 ALR 68
National Companies and Securities Commission Ltd v News Corporation Ltd (1984) 156 CLR 296
SCVG & KLD (2014) 284 FLR 191
Ulster & Viney (2016) 310 FLR 407

APPELLANT:

Mr Amari

RESPONDENT:

Ms Qureshi

INDEPENDENT CHILDREN’S LAWYER:

Andrea Evans

FILE NUMBER:

CAC

636

2012

APPEAL NUMBER:

2015

DATE DELIVERED:

11 July 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Canberra

JUDGMENT OF:

May, Ryan & Gill JJ

HEARING DATE:

21 November 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

25 May 2015

LOWER COURT MNC:

[2015] FCCA 1293

REPRESENTATION

THE APPELLANT:

In Person

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Evans

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Evans Family Lawyers

Orders

The father have leave to adduce the Notice of Child Abuse filed on 21 May 2014 as further evidence in the appeal.
Other than as provided for in Order 1, the father’s Application in an Appeal filed on 7 November 2016 be dismissed.
The appeal be dismissed.
The Application in an Appeal by the ICL that the father pay the costs of 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 Amari & Qureshi 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 CANBERRA

Appeal…

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 Amari & Qureshi

Details

AGLC: Amari & Qureshi [2017] FamCAFC 122
Case: [2017] FamCAFC 122
Decision Date: 11 July 2017

CaseChat Overview and Summary

In the matter of Amari & Qureshi, the appeal involved a dispute over final parenting orders, with the father, the appellant, arguing procedural unfairness due to the absence of an interpreter provided to him. The Family Court of Australia heard the appeal. The primary judge's decisions were challenged on the grounds of factual inaccuracies and alleged omissions in the findings. The court had to determine whether the primary judge erred in these respects and whether the appellant's right to procedural fairness was compromised. The court also had to consider an application to adduce further evidence in the appeal and a request for costs by the Independent Children’s Lawyer.

The court examined whether the appellant had been denied procedural fairness by not being provided with an interpreter. It found that while the appellant had an entitlement to such an interpreter, the primary judge's failure to provide one did not necessarily lead to a denial of procedural fairness. The court assessed the primary judge's findings and concluded that no errors of fact were made, and the omissions in findings did not affect the outcome. The appeal was dismissed on these grounds. The application to adduce further evidence was partly granted, allowing the Notice of Child Abuse filed on 21 May 2014 to be included as evidence in the appeal, while other parts of the application were dismissed as irrelevant or contentious.

The court also considered the application by the Independent Children’s Lawyer for costs against the appellant. Given that the appeal was unsuccessful, the court dismissed the application for costs. The final orders included allowing the appellant leave to adduce the Notice of Child Abuse as further evidence, dismissing other parts of the application to adduce evidence, dismissing the appeal, and dismissing the application for costs by the Independent Children’s Lawyer. These orders were subject to formal entry in the court's records.

Orders

Orders of the court

The father have leave to adduce the Notice of Child Abuse filed on 21 May 2014 as further evidence in the appeal.

Other than as provided for in Order 1, the father’s Application in an Appeal filed on 7 November 2016 be dismissed.

The appeal be dismissed.

The Application in an Appeal by the ICL that the father pay the costs of the appeal be 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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