Darvish & Karo - [2024] FedCFamC2F 1020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Darvish & Karo [2024] FedCFamC2F 1020

File number(s): SYC 9035 of 2023

Judgment of: JUDGE STREET

Date of judgment: 26 July 2024

Catchwords: FAMILY LAW – PROCEDURE- dispensing with the need to comply with the Notice to Produce under r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Division: Division 2 Family Law

Number of paragraphs: 3

Date of hearing: 26 July 2024

Place: Sydney

Counsel for the Applicant: Ms S Mahony

Solicitor for the Applicant: I & J Law

Respondent: Appeared via video and audio-link
ORDERS

SYC 9035 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DARVISH

Applicant

AND:
MR KARO

Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

26 JULY 2024

THE COURT ORDERS THAT:
1.Pursuant to rule 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court dispenses with the need for compliance by the applicant with the notice to produced dated 24 June 2024.

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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET

These proceedings were commenced for divorce on 29 November 2023, and on 31 May 2024, a judge of this Court fixed the matter for a final hearing in respect of the divorce application by the applicant wife (“the wife”). It is apparent that the respondent husband (“the husband”) has been overseas since early 2022. The wife alleges that separation occurred on 23 April 2022. The husband has filed a number of affidavits relating to the application for divorce and also in support of an application challenging jurisdiction and for a stay on the grounds of inconvenient forum, the husband having commenced three proceedings in Courts in Country B.
On 18 July 2024, the husband an Application in a Proceeding which sought an adjournment of these proceedings, in substance, based on the wife’s failure to comply with a Notice to Produce dated 24 June 2024. The Notice to Produce required the following:
(1)A copy of all contracts signed by Ms…

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 Darvish & Karo

Details

AGLC: Darvish & Karo [2024] FedCFamC2F 1020
Case: [2024] FedCFamC2F 1020
Decision Date: 26 July 2024

CaseChat Overview and Summary

Ms Darvish brought an application in the Federal Circuit and Family Court of Australia for an order dispensing with the need for her to comply with a Notice to Produce issued by Mr Karo, the respondent in these proceedings. The application was brought under rule 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The central issue before the Court was whether the applicant should be required to comply with the Notice to Produce and, if not, what the appropriate order should be.

The Court considered the provisions of rule 1.31 and noted that the rule allows the Court to dispense with the need for a party to comply with a Notice to Produce where it is satisfied that the party has acted reasonably in failing to comply. The Court also considered the circumstances of the case, including the reasons for the applicant’s failure to comply with the Notice and the extent to which this failure may have prejudiced the respondent. Ultimately, the Court was satisfied that the applicant had acted reasonably and that dispensing with the need to comply with the Notice was the appropriate course.

The Court ordered that the applicant should not be required to comply with the Notice to Produce dated 24 June 2024. This order was made pursuant to rule 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The Court noted that the form of the order was subject to entry in the Court’s records and that it may be subject to review to correct minor errors or to record a variation to the order.

Orders

Orders of the court

SYC 9035 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS DARVISH

Applicant

AND:

MR KARO

Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

26 JULY 2024

THE COURT ORDERS THAT:

1. Pursuant to rule 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court dispenses with the need for compliance by the applicant with the notice to produced dated 24 June 2024.

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

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 9035 of 2023
Judgment of:	JUDGE STREET
Date of judgment:	26 July 2024
Catchwords:	FAMILY LAW – PROCEDURE- dispensing with the need to comply with the Notice to Produce under r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Legislation:	Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division:	Division 2 Family Law
Number of paragraphs:	3
Date of hearing:	26 July 2024
Place:	Sydney
Counsel for the Applicant:	Ms S Mahony
Solicitor for the Applicant:	I & J Law
Respondent:	Appeared via video and audio-link

SYC 9035 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS DARVISH Applicant
AND:	MR KARO Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	26 JULY 2024