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 | of | 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…
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- Case
- [2010] FamCA 1080
- Decision Date
CaseChat Overview and Summary
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
1.
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).
2.
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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