Ghorbani and Saeed - [2013] FamCAFC 167

FAMILY COURT OF AUSTRALIA

GHORBANI & SAEED

[2013] FamCAFC 167

FAMILY LAW – APPEAL – RECOVERY ORDER APPLICATION – Where the appellant alleged that the trial judge refused to hear, or make arrangements for the timely hearing of an application for a recovery order and gave no proper reasons for the basis of those decisions – Where both parties urged the trial judge to hear that application as a matter of urgency – Where the Full Court held that although it may not have been possible to determine the recovery order application on the day on which it came before the trial judge, there were a range of matters which could have been addressed and arrangements could have been made for an early hearing of the application – Appeal allowed – Order made by the Full Court that the application for a recovery order be listed as a matter of urgency in the Federal Circuit Court – Costs certificates granted.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Stead v State Government Insurance Commission (1986) 67 ALR 21

APPELLANT:

Mr Ghorbani

RESPONDENT:

Ms Saeed

FILE NUMBER:

SYC

5276

2013

APPEAL NUMBER:

133

2013

DATE DELIVERED::

4 October 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Finn and Loughnan JJ

HEARING DATE:

30 September 2013

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 September 2013

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Kenny
COUNSEL FOR THE RESPONDENT:	Ms Barnett

Orders made on 30 September 2013

The appeal be allowed.
Order 5 of the orders made by Judge Kemp on 19 September 2013 be set aside.
The parties’ interim applications be heard as a matter of urgency by a judge of the Federal Circuit Court of Australia as soon as possible on or after 9 October 2013.
The appellant’s legal representatives:
(a)serve upon the Secretary of the Department of Immigration and Border Protection:
(i)all applications, affidavits and orders made by the Federal Circuit Court of Australia and this court
(ii)a copy of the reasons for judgment of this court as soon as available; and
(b)give notice to the Secretary of the hearing date or dates as soon as available.
The court requests that the Secretary of the Department of Immigration and Border Protection give consideration to appearing on the next hearing date, and/or otherwise providing to the court information as to the implications for these proceedings of the decisions by the Minister for Immigration and Citizenship in respect of the appellant and child evidenced by letters dated

13 May 2013 and 22 May 2013 which are annexed to the affidavit of the appellant filed 10 September 2013.
The appellant and respondent be and are hereby restrained from removing the child … , born … 2006, from the Commonwealth of Australia until further order. The court requests that the Australian Federal Police give effect to this order by maintaining the name of the…

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

AGLC: GHORBANI & SAEED [2013] FamCAFC 167
Case: [2013] FamCAFC 167
Decision Date: 4 October 2013

CaseChat Overview and Summary

Mr Ghorbani appealed against orders made by the Federal Circuit Court on 19 September 2013 in proceedings between him and Ms Saeed. The main issue on appeal was whether the trial judge had refused to hear or make arrangements for a timely hearing of the father’s application for a recovery order and gave no proper reasons for those decisions. The Full Court found that while it may not have been possible to determine the recovery order application on the day it came before the trial judge, there were a range of matters which could have been addressed and arrangements could have been made for an early hearing of the application.

The Full Court concluded that the trial judge's refusal to engage with the father's application and make arrangements for a timely hearing of the application represented a denial of access to the court. The trial judge had adjourned the father’s application, effectively dismissing it. The Full Court found that the trial judge should have made arrangements to give the matter some brief time later in the day, in the next day or so or made arrangements for the matter to be listed in that timeframe before another judge. The Full Court allowed the appeal, set aside the adjournment order, and ordered that the application for a recovery order be listed as a matter of urgency in the Federal Circuit Court. Costs certificates were granted with respect to the costs of the appeal.

Orders