FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dabiri & Khadem (No 2) [2024] FedCFamC1F 318
File number(s): BRC 5590 of 2018 Judgment of: HOWARD J Date of judgment: 12 February 2024 Catchwords: FAMILY LAW – Contempt proceedings – submission made that there is no case to answer – no case application dismissed Legislation: Family Law Act 1975 (Cth); s 112AD, 112AP Cases cited: Fierro & Fierro (No 7) [2023] FedCFamC1A 24
Ibbotson & Wincen [1994] FamCA 103
Kendling and Anor & Kendling [2008] FamCAFC 154
Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 12 February 2024 Place: Brisbane Counsel for the applicant: Mr Kennedy Solicitor for the applicant: Sterling Law Counsel for the respondent: Mr Seewald Solicitor for the respondent: Sharma Lawyers ORDERS
BRC 5590 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DABIRI
Applicant
AND: MR KHADEM
Respondent
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
12 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application for no case to answer is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
HOWARD J
These reasons were delivered ex temporeon 12 February 2024 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court relates to an Application for no case to answer that has been made by the respondent. The primary proceedings involve an Application for contempt. The Amended Application for Contempt was filed on 28 April 2023 by the wife. There are 10 charges remaining. Many others were withdrawn previously. The 10 charges remaining are contained in paragraphs 24, 34, 35, 36, 37, 38, 39, 40, 41 and 42 of the Amended Application for contempt. Mr Seewald of counsel appears today on behalf of the respondent, and on the respondent’s behalf, he has made the no case Application.
The Full Court in Fierro & Fierro (No 7) [2023] FedCFamC1A 24 recently considered no case applications in relation to contempt proceedings, noting that if an Application for contempt has been made and it is the view…
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CaseChat Overview and Summary
In addressing the no case to answer application, the court considered whether the evidence presented by Ms Dabiri was sufficient to establish the elements of the contempt offence. The court examined the evidence provided, focusing on whether the publication in question could be deemed to have breached the relevant family law order. It was determined that the evidence presented was adequate to warrant the matter proceeding to trial, thus the application was dismissed. The court found that there was a sufficient basis to argue that Mr Khadem had indeed published an account that identified Ms Dabiri and her child, which could potentially breach the family law order.
Consequently, the court dismissed the application for no case to answer, allowing the contempt proceedings to continue. The court held that the evidence submitted by Ms Dabiri was sufficient to establish a prima facie case for contempt, and thus, Mr Khadem would need to defend against the allegations in a trial. The decision underscores the importance of adhering to family law orders designed to protect the privacy and welfare of individuals involved in family law proceedings. The court's order ensures that the matter will proceed to trial, where the full merits of the contempt allegations will be determined.
Orders
Orders of the court
BRC 5590 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS DABIRI
Applicant
AND:
MR KHADEM
Respondent
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
12 FEBRUARY 2024
THE COURT ORDERS THAT:
1. The Application for no case to answer is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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