Goudarzi and Bagheri (No 2) - [2017] FamCA 775

FAMILY COURT OF AUSTRALIA

GOUDARZI & BAGHERI (NO. 2)

[2017] FamCA 775

FAMILY LAW – PRACTICE AND PROCEDURE – Leave sought by the mother to introduce evidence on first day of final hearing – Where the father cannot meet the material and seeks an adjournment - Where there is a prejudice to the father’s case if there is an adjournment as he has not seen the children since late 2015 in a meaningful way – Where there is prejudice to the children if there as an adjournment as their lives have been in turmoil due to ongoing litigation– Where the hearing cannot commence as splitting the oral evidence adds an administrative complexity and inefficiency to the complicated proceedings – Where admission of the new material means that the hearing must be adjourned.

FAMILY LAW – PRACTICE AND PROCEDURE- Where there is application to provide a single expert with material – Where there is no objection in principle to that material going forward – Where if there is an objection about some particular material the matter can be brought back to Court - Where the Independent Children’s Lawyer is to provide to the single expert such material as the Independent Children’s Lawyer considers appropriate.

APPLICANT:

Ms Goudarzi

RESPONDENT:

Mr Bagheri

INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

FILE NUMBER:

SYC

7646

2008

DATE DELIVERED:

14 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

14 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lawson

SOLICITOR FOR THE APPLICANT:

Cheryl Orr Family Law

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Stolier

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

Orders

The final hearing of the proceedings is adjourned to a date to be fixed.
Leave is granted to the Independent Children’s Lawyer to provide material to Dr LL.
The mother is to provide to the Independent Children’s Lawyer details of her residential address as soon as practicable and is to notify him of any change to that address, within 24 hours of such a change and the Independent Children’s Lawyer is to retain that information and not release it without an order of the Court.
The solicitor for the mother provide to the solicitor for the father any documents falling within the description at paragraph 2 of the letter dated 7 August 2017, with any relevant residential address redacted, as soon as practicable and in any event within 14 days from today’s date.
The solicitor for the mother provide to the solicitor for the father any documents falling within the description at paragraph 4 of the letter dated 7 August 2017 as soon as practicable and in any event within 14 days from today’s date with any relevant residential address redacted.
The Court Notes that the parties are in negotiation in relation to the balance of the letter dated 7 August 2017.
Mr OO who was the single information technology expert in 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

Case: [2017] FamCA 775
Decision Date: 14 August 2017

CaseChat Overview and Summary

In *Goudarzi and Bagheri (No 2)*, Loughnan J considered an application by the mother for leave to introduce new evidence on the first day of a final hearing. The father contended that admitting this material would necessitate an adjournment, causing prejudice to his case as he had not meaningfully seen the children since late 2015. Furthermore, an adjournment would prejudice the children, whose lives had already been disrupted by protracted litigation. The court also noted that commencing the hearing with the proposed new evidence would create administrative complexities and inefficiencies, effectively preventing the hearing from commencing as scheduled.

The court was required to determine whether to grant the mother leave to introduce the new evidence, which would lead to an adjournment of the final hearing, and to consider an application to provide a single expert with certain material. The Independent Children’s Lawyer was also seeking to provide material to a single expert.

Loughnan J reasoned that admitting the new material would inevitably lead to an adjournment of the final hearing. The court granted leave to the Independent Children’s Lawyer to provide material to a single expert, noting no objection in principle to this occurring, with any specific objections to be brought back before the court. The final hearing was adjourned to a date to be fixed. The orders also addressed the provision of documents between the parties, the appointment of a single information technology expert, and the inspection of material by a consultant psychiatrist. Further directions were made regarding subpoenas and the adjournment of proceedings to specific dates.

Orders

Orders of the court

The final hearing of the proceedings is adjourned to a date to be fixed.

Leave is granted to the Independent Children’s Lawyer to provide material to Dr LL.

The mother is to provide to the Independent Children’s Lawyer details of her residential address as soon as practicable and is to notify him of any change to that address, within 24 hours of such a change and the Independent Children’s Lawyer is to retain that information and not release it without an order of the Court.

The solicitor for the mother provide to the solicitor for the father any documents falling within the description at paragraph 2 of the letter dated 7 August 2017, with any relevant residential address redacted, as soon as practicable and in any event within 14 days from today’s date.

The solicitor for the mother provide to the solicitor for the father any documents falling within the description at paragraph 4 of the letter dated 7 August 2017 as soon as practicable and in any event within 14 days from today’s date with any relevant residential address redacted.

The Court Notes that the parties are in negotiation in relation to the balance of the letter dated 7 August 2017.

Mr OO who was the single information technology expert in the 2013 proceedings is appointed to that same role in these proceedings.

Leave is granted to any consultant psychiatrist instructed on behalf of the father to inspect any material in these proceedings in respect of which the father has the right to inspect.

Leave is granted for the issue of a subpoena addressed to the Proper Officer of KK Pty Ltd returnable at 3.00 pm on 15 August 2017 and it is directed that service of the subpoena be accompanied by a note to the effect that the obligation on the addressee is to comply with the subpoena by the return date and time if practicable and otherwise as soon as practicable thereafter.

10.

The proceedings are adjourned to 10.00 am on 16 August 2017.

11.

The subpoena issued on the application of the Independent Children’s Lawyer to Sydney University is adjourned to 10.00 am on 16 August 2017 and notice of that adjournment is to be given to the addressee by the Independent Children’s Lawyer.

12.

The Court Notes that the adjournment of the subpoena to that date and time is on the basis that it is feasible and practicable for the University to attend.

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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