Mady & Farha - [2022] FedCFamC1F 306

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mady & Farha [2022] FedCFamC1F 306

File number(s): SYC 5754 of 2018

Judgment of: CAMPTON J

Date of judgment: 10 May 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the father speaks Language B and has no English language skills – Where in the course of the father’s oral evidence it became clear that he had not had the mother’s trial affidavit or the two family reports interpreted or translated to him from English in Language B – Consideration of the principles of conducting child-related proceedings – Where it is contrary to the interests of justice to continue with the current trial – Where the final hearing is adjourned

Legislation: Family Law Act 1975 (Cth) ss 69ZN, 69ZQ

Cases cited: R v Watson; ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39

Division: Division 1 First Instance

Number of paragraphs: 29

Date of hearing: 9 – 12 May 2022

Place: Sydney

Counsel for the Applicant: Mr Blank

Solicitor for the Applicant: RMG Law & Associates

Counsel for the Respondent: Ms Giacomo

Solicitor for the Respondent: Legal Aid NSW Domestic Violence Unit

Counsel for the Independent Children's Lawyer: Mr Hill

Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers
ORDERS

SYC 5754 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MADY

Applicant

AND:
MS FARHA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

10 MAY 2022

THE COURT ORDERS THAT:
1.These proceedings are to be adjourned, pending the making of further directions, after hearing from each of the parties and the Independent Children’s Lawyer, as to the further conduct of the proceedings. Those directions will include the terms of any restrictions to be imposed on the father in circumstances where his cross-examination is yet to conclude.
2.I direct that a transcript of the father’s oral evidence be taken out and placed on the file, so that it is available for inspection by each of the legal representatives of the parties and the Independent Children’s Lawyer.
3.I direct that in the event any party or the Independent Children’s Lawyer proposes to make any application for a variation of interim parenting orders or any further relief for interim parenting orders or by way of an application for a separate decision on any issue, pursuant to r 10.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), provided such application is consistent with the reasons just delivered, that such application be reduced to writing by way of a minute of order that is to be filed and served on or before 4.00 pm today. In the event of such minute of order being filed and served, the proceedings be listed for hearing of such further relief at 10.00 am tomorrow. In the event no such interim application or other relief is filed and served, the proceedings be listed at 10.00 am tomorrow for further directions and trial…

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.

Continue reading Mady & Farha

Details

AGLC: Mady & Farha [2022] FedCFamC1F 306
Case: [2022] FedCFamC1F 306
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Mady & Farha involved a dispute over the parenting arrangements of a child, X, born in 2014. X has been living with the mother since late 2020, and the father has not seen X in approximately 18 months. The father, who speaks Language B and has limited English language skills, commenced these parenting proceedings in 2018. Both parents originate from Country C and arrived in Australia as refugees in 2018. The trial, which commenced on 9 May 2022, faced significant challenges when it was revealed that the father had not had the mother's trial affidavit or two family reports translated into Language B.

The court was required to decide on several legal issues, including whether the trial should proceed given the father's lack of understanding of critical documents, and whether it was in the best interests of X to continue the trial in its current state. The court considered the principles of conducting child-related proceedings under the Family Law Act 1975 (Cth), particularly the need to safeguard the child from abuse, neglect, or family violence, and the necessity to promote cooperative and child-focused parenting. Additionally, the court had to balance the principles of fairness, efficiency, and the avoidance of undue delay.

The court found that continuing the trial under the existing circumstances would be unsafe and contrary to the interests of justice. It was deemed inappropriate for the father to gain an understanding of critical documents "mid-trial." The court recognised the importance of fairness to all parties, including X, and emphasised the need for proper forensic processes to be followed. Consequently, the court decided to adjourn the proceedings pending further directions. These directions would include terms for any restrictions on the father if his cross-examination was not yet concluded. The court also ordered that a transcript of the father's oral evidence be taken and placed on the file for inspection by all legal representatives and the Independent Children's Lawyer.

Orders