Khalil and Tahir-Ahmadi - [2010] FamCA 1080

FAMILY COURT OF AUSTRALIA

KHALIL & TAHIR-AHMADI

[2010] FamCA 1080

FAMILY LAW – EVIDENCE – parenting issues – whether section 69ZT(3) should be applied in the trial proceedings – whether exceptional circumstances exist – consideration of the principles contained in section 69ZN – where the Court was not satisfied that exceptional circumstances existed – held that it was inappropriate to apply the provisions of section 69ZT(3)

Family Law Act 1975 (Cth) ss 69ZN & 69ZT

Baker v The Queen [2004] HCA 45
Emmett & Emmett (No. 2) [2010] FamCA 57
Johnson & Page (2007) FLC 93-344
R v Kelly (Edward) [2000] QB 198
Segur & Segur [2010] FamCA 556
State Central Authority & Ustinov (No. 4) [2008] FamCA 987

APPLICANT:

Mr Khalil

RESPONDENT:

Ms Tahir-Ahmadi

INDEPENDENT CHILDREN’S LAWYER:

Barr Lawyers

FILE NUMBER:

ADC

4408

2009

DATE DELIVERED:

16 November 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

16 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mellows

SOLICITOR FOR THE APPLICANT:

Legal Services Commission of SA

COUNSEL FOR THE RESPONDENT:

Ms Dibden

SOLICITOR FOR THE RESPONDENT:

McDonald Steed McGrath Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Pickhaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barr Lawyers

Orders

At this stage I do not propose to make any blanket order which requires the facts to be established with the evidence required in accordance with the Evidence Act but will proceed to hear the matter pursuant to the provisions of section 69ZT(1).
Leave is given to the wife to issue a subpoena to the local Community Health Service to produce documents in relation to the wife, husband and the child PROVIDED THAT it is issued by 4.00 pm on Tuesday 16 November 2010 and made returnable at 9.15 am on Thursday 18 November 2010 before me.

IT IS NOTED that publication of this judgment under the pseudonym Khalil & Tahir-Ahmadi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4408 of 2009

MR KHALIL

Applicant

And

MS TAHIR-AHMADI

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

This is a preliminary issue that needs to be determined at the commencement of this final hearing of the matter. The proceedings between the parties, in relation to the welfare of the child, commenced in December 2006. There was subsequently a trial in the Federal Magistrates Court of Australia. A decision was made. The matter went on appeal. The appeal was heard by the Full Court, the Appeal Division of the Family Court of Australia, and was successful. The matter was then referred back to the Federal Magistrates Court of Australia for rehearing. Subsequently, it was then transferred to this Court. Preparations have been made to list the conclusion of the matter for trial. The trial commenced before me yesterday.
There were already a large number of documents on the Federal Magistrates Court file, and another number of documents on the Family Court of Australia file.
When the matter was…

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: [2010] FamCA 1080
Decision Date: 16 November 2010

CaseChat Overview and Summary

In *Khalil and Tahir-Ahmadi*, Dawe J of the Federal Magistrates Court of Australia considered an application concerning the establishment of facts in family law proceedings. The dispute involved the wife seeking to adduce evidence from a Community Health Service.

The primary legal issue before the court was whether to make a blanket order requiring the facts to be established in accordance with the *Evidence Act 1995* (Cth) at that stage of the proceedings, or to proceed under section 69ZT(1) of the *Family Law Act 1975* (Cth). A related issue was whether to grant the wife leave to issue a subpoena for specific documents.

Dawe J declined to make a blanket order under the *Evidence Act* at that juncture, opting instead to proceed with the hearing pursuant to section 69ZT(1) of the *Family Law Act*. This provision allows for the court to proceed with the hearing of evidence in family law matters without strict adherence to formal rules of evidence if it is in the interests of justice. The court granted the wife leave to issue a subpoena to the local Community Health Service for documents pertaining to the wife, husband, and child, subject to strict time limits for issuance and return.

Orders

Orders of the court

At this stage I do not propose to make any blanket order which requires the facts to be established with the evidence required in accordance with the Evidence Act but will proceed to hear the matter pursuant to the provisions of section 69ZT(1).

Leave is given to the wife to issue a subpoena to the local Community Health Service to produce documents in relation to the wife, husband and the child PROVIDED THAT it is issued by 4.00 pm on Tuesday 16 November 2010 and made returnable at 9.15 am on Thursday 18 November 2010 before me.

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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