Heidari & Ebadi - [2020] FamCAFC 316

FAMILY COURT OF AUSTRALIA

HEIDARI & EBADI

[2020] FamCAFC 316

FAMILY LAW – APPEAL – INTERIM FINANCIAL – Where the parties sought that the appeal be allowed by consent – Where there is ample law to the effect that an appellate court must be satisfied of error when an appeal is sought by the parties to be allowed by consent – Where this Court is satisfied that leave to appeal should be granted and the appeal should succeed – Where there is merit in the grounds of appeal – Appeal allowed – Orders set aside – Matter remitted for rehearing.

FAMILY LAW – APPEAL – COSTS CERTIFICATES – Where the appeal is properly characterised as a Federal appeal – Where the appeal has succeeded on a question of law – Where the appeal has been listed in a public and formal way and has proceeded to a hearing – Costs certificates granted as sought.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Bhatnagar & Riju [2018] FamCAFC 144
Cramer v Davies (1997) 72 ALJR 146
Sielaff & Staatz [2018] FamCAFC 213
Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 246 ALR 15; [2008] FCAFC 7

APPELLANT:

Mr Heidari

RESPONDENT:

Ms Ebadi

FILE NUMBER:

PTW

2596

2020

APPEAL NUMBER:

WEA

2020

DATE DELIVERED:

14 December 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Perth (via video link)

JUDGMENT OF:

Strickland, Ainslie-Wallace & Ryan JJ

HEARING DATE:

1 December 2020

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

10 June 2020

LOWER COURT MNC:

[2020] FCWAM 58

REPRESENTATION

SOLICITOR ADVOCATE FOR

THE APPELLANT:

Mr Ambas

SOLICITOR FOR THE APPELLANT:

Swiftly Legal

COUNSEL FOR THE RESPONDENT:

Mr Beckerling

SOLICITOR FOR THE RESPONDENT:

Smart Legal Group

Orders made 1 December 2020 as amended on 4 December 2020 pursuant to r 17.02 of the Family Law Rules 2004 (Cth)

Leave to appeal be granted.
The appeal be allowed.
The orders made by the primary Magistrate on 10 June 2020 be set aside.
The proceedings be remitted to the Magistrates Court of Western Australia for rehearing by a family law Magistrate other than the primary Magistrate.
The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent wife a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.
The Court grants to 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: Heidari & Ebadi [2020] FamCAFC 316
Case: [2020] FamCAFC 316
Decision Date: 14 December 2020

CaseChat Overview and Summary

This matter concerned an appeal against interim financial orders made by a magistrate in the Magistrates Court of Western Australia. The parties sought that the appeal be allowed by consent. The appeal was heard by the Full Court of the Family Court of Australia. The central legal issue before the Court was whether the appeal should be allowed by consent and, if so, whether there was merit in the grounds of appeal. The Court was required to consider the relevant case law and determine whether the appeal was properly characterised as a Federal appeal and, if so, whether the appeal had succeeded on a question of law.

The Court found that there was ample case law indicating that an appellate court must be satisfied of error when an appeal is sought to be allowed by consent. The Court was satisfied that leave to appeal should be granted and the appeal should succeed, as there was merit in the grounds of appeal. The Court set aside the orders made by the primary Magistrate and remitted the matter for rehearing by a different family law Magistrate. The Court also granted costs certificates to both parties in accordance with the Federal Proceedings (Costs) Act 1981 (Cth), given that the appeal had been listed in a public and formal way and had proceeded to a hearing.

In light of the above, the Court allowed the appeal, set aside the orders made by the primary Magistrate, and remitted the matter for rehearing by a different family law Magistrate. The Court also granted costs certificates to both parties in respect of the costs incurred by them in relation to the appeal and the rehearing. The reasons for judgment of the Full Court will follow these orders and will be published and provided to the parties as soon as is practicable.

Orders

Orders of the court

Orders made 1 December 2020 as amended on 4 December 2020 pursuant to r 17.02 of the Family Law Rules 2004 (Cth)

1. Leave to appeal be granted.

2. The appeal be allowed.

3. The orders made by the primary Magistrate on 10 June 2020 be set aside.

4. The proceedings be remitted to the Magistrates Court of Western Australia for rehearing by a family law Magistrate other than the primary Magistrate.

5. The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.

6. The Court grants to the respondent wife a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.

7. The Court grants to the appellant husband and the respondent wife costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the parties in respect of the costs incurred by them in relation to the rehearing.

IT IS NOTED THAT:

The reasons for judgment of the Full Court will follow these orders and will be published and provided to the parties as soon as is practicable.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Heidari & Ebadi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

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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