Barakat and Barakat (No 2) - [2015] FamCA 1027

FAMILY COURT OF AUSTRALIA

BARAKAT & BARAKAT (NO. 2)

[2015] FamCA 1027

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the applicant wife seeks an adjournment on the fifth day of the final hearing – Where it has recently been alleged that the respondent husband has failed to disclose an interest in a trust established by his mother, which had subsequently acquired property – Where during the course of the hearing it was revealed a development application has been lodged in respect to the property – Where material has recently been produced under subpoena in respect to the property – Adjournment granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

APPLICANT:

Ms Barakat

RESPONDENT:

Mr Barakat

FILE NUMBER:

SYC

3117

2012

DATE DELIVERED:

13 November 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

13 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levet

SOLICITOR FOR THE APPLICANT:

Cambridge Law

COUNSEL FOR THE RESPONDENT:

Mr Johnston

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal

Orders

THE COURT ORDERS THAT:

Leave is granted to the Applicant Wife to amend the schedule of the subpoena issued to the National Australia Bank filed on 5 November 2015 by adding the following:

a. after the words “loan application forms” the words, “(including all documents produced in support of the application)”; and
b. adding an additional paragraph “d” to include “E Pty Ltd”.

The Applicant Wife is to pay the reasonable expenses incurred by the National Australia Bank in complying with the amended subpoena served on the National Australia Bank today, including the reasonable costs (assessed on party/party basis) in respect to:

a. obtaining legal advice in respect to the Applicant Wife’s request to produce additional documents to the Court; and
b. obtaining legal representation for todays appearance.

Leave is granted to the parties and their legal representatives to inspect the additional documents produced today in answer to the amended subpoena served on the National Australia Bank today.

THE COURT FURTHER ORDERS THAT:

The Applicant Wife’s oral application for an adjournment of the proceedings is granted.

The matter is adjourned Part Heard before McClelland J to 10.00 am on 16 and 17 March 2016.
The Respondent Husband’s oral application for the costs thrown away today, on an indemnity basis, is adjourned to balance of the final hearing listed on 16 and 17 March 2016.

THE COURT ORDERS, BY CONSENT AND PENDING FURTHER ORDER, THAT:

The father’s Application in a Case filed on 11 September 2015 is set down for hearing at 10.00 am on Friday, 18 December 2015.

Orders 3, 4, 5, 6, 7, 8 and 9 of the Orders made on 13 August 2015 be suspended until 19 December 2015.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed and I request the Legal Aid Commission of NSW to provide such representation.

10. The parties…

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.

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Details

Case: [2015] FamCA 1027
Decision Date: 13 November 2015

CaseChat Overview and Summary

In *Barakat and Barakat (No 2)*, heard by McClelland J, the applicant wife sought an adjournment of the final hearing on its fifth day. The dispute concerned allegations that the respondent husband had failed to disclose an interest in a trust established by his mother, which had subsequently acquired property. During the hearing, it was revealed that a development application had been lodged concerning this property, and new material had been produced under subpoena in relation to it.

The court was required to determine whether to grant the applicant wife's application for an adjournment of the proceedings. This decision was to be made in light of the recent revelations regarding the trust property, the development application, and the production of new documentary evidence.

McClelland J granted the adjournment, acknowledging the significance of the newly disclosed information and the need for the applicant to properly investigate and address it. The court also made orders concerning the amendment of a subpoena to the National Australia Bank to include further documentation and a specific entity, with the applicant wife to bear the bank's expenses. The matter was adjourned to specific dates for further hearing, and the husband's application for costs thrown away was deferred. Additionally, by consent, interim orders were made regarding a separate application, the appointment of an Independent Children's Lawyer, and the provision of documents to the Legal Aid Commission.

Orders

Orders of the court

THE COURT ORDERS THAT:

Leave is granted to the Applicant Wife to amend the schedule of the subpoena issued to the National Australia Bank filed on 5 November 2015 by adding the following:

a. after the words “loan application forms” the words, “(including all documents produced in support of the application)”; and

b. adding an additional paragraph “d” to include “E Pty Ltd”.

The Applicant Wife is to pay the reasonable expenses incurred by the National Australia Bank in complying with the amended subpoena served on the National Australia Bank today, including the reasonable costs (assessed on party/party basis) in respect to:

a. obtaining legal advice in respect to the Applicant Wife’s request to produce additional documents to the Court; and

b. obtaining legal representation for todays appearance.

Leave is granted to the parties and their legal representatives to inspect the additional documents produced today in answer to the amended subpoena served on the National Australia Bank today.

THE COURT FURTHER ORDERS THAT:

The Applicant Wife’s oral application for an adjournment of the proceedings is granted.

The matter is adjourned Part Heard before McClelland J to 10.00 am on 16 and 17 March 2016.

The Respondent Husband’s oral application for the costs thrown away today, on an indemnity basis, is adjourned to balance of the final hearing listed on 16 and 17 March 2016.

THE COURT ORDERS, BY CONSENT AND PENDING FURTHER ORDER, THAT:

The father’s Application in a Case filed on 11 September 2015 is set down for hearing at 10.00 am on Friday, 18 December 2015.

Orders 3, 4, 5, 6, 7, 8 and 9 of the Orders made on 13 August 2015 be suspended until 19 December 2015.

Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed and I request the Legal Aid Commission of NSW to provide such representation.

10. The parties provide to the Legal Aid Commission, of NSW, PO Box K847 HAYMARKET within 48 hours all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.

11. The father is granted leave to provide a copy of relevant Orders made by the Court in these proceedings, including the Orders made on 13 August 2015 and a copy of the Orders made today, to the children’s school.

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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