Mady & Farha (No 3) - [2023] FedCFamC1F 379

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mady & Farha (No 3) [2023] FedCFamC1F 379

File number(s): SYC 5754 of 2018

Judgment of: CAMPTON J

Date of judgment: 15 May 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Part-heard trial – Application to adjourn the trial for one day to allow the father’s legal representatives time to have documents filed or tendered in the proceedings translated to him – Where the trial was previously adjourned for a period of 12 months, in part because the family report had not been translated to the father – Where the father has not complied with various procedural and interlocutory orders in the lead-up to the part-heard trial – Where the father’s legal representatives have assured the Court that the necessary documents will be translated if Court is adjourned by one day – Adjournment granted.

Legislation: Family Law Act 1975 (Cth) s 102NA

Cases cited: Mady & Farha [2022] FedCFamC1F 306

Division: Division 1 First Instance

Number of paragraphs: 15

Date of hearing: 15 May 2023

Place: Sydney

Counsel for the Applicant: Mr Shaw

Solicitor for the Applicant: Khalil Family Lawyers Pty Ltd

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:

15 MAY 2023

THE COURT ORDERS THAT:
1.The father be granted leave to make an oral application to adjourn the trial to commence at 10.00 am by way of his cross-examination continuing tomorrow.
2.The trial is adjourned to recommence at 10.00 am tomorrow, 16 May 2023.
3.The father is to serve upon the mother’s legal representatives and upon the Independent Children’s Lawyer on or before 9.30am on 16 May 2023 a minute setting out with precision his final parenting orders as sought and a proof of the oral evidence which he proposes subject to leave giving in chief.
4.The objection (if any) as taken by the father to the report of the mother’s recently deceased therapist forming annexures E and F of the mother’s affidavit filed on 10 May 2023 and the mother’s objection to the report of Dr O dated 29 September 2022 as annexed to the father’s affidavit filed 10 October 2022 together with the oral application of the mother for leave to rely on paragraphs 59–63 of her affidavit filed 10 May 2023 be adjourned until tomorrow 16 May 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant…

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 (No 3)

Details

AGLC: Mady & Farha (No 3) [2023] FedCFamC1F 379
Case: [2023] FedCFamC1F 379
Decision Date

CaseChat Overview and Summary

The case of Mady & Farha (No 3) involves a dispute between Mr Mady and Ms Farha over the parenting arrangements of their child, X, born in 2014. The proceedings began in the Federal Circuit Court of Australia on 7 September 2018. The parents, who are refugees from Australia, separated shortly after their arrival and X has been living with Ms Farha since then. The primary language of both parents is Language B, though Ms Farha's English skills have improved. The trial was initially scheduled for five days, commencing on 9 May 2022, but was adjourned part-heard on 10 May 2022 due to issues with the translation of documents for Mr Mady. The matter comes before the court again for consideration of Mr Mady's application to adjourn the trial by one day to allow for translation of documents and finalisation of his evidence and parenting orders.

The primary legal issues the court had to decide were whether the trial should be adjourned to allow Mr Mady's legal representatives time to translate documents and finalise his evidence, and if so, under what conditions. This decision came after the court observed numerous procedural failures by Mr Mady's legal representatives, including failure to inspect the court file, obtain access to tendered exhibits, and translate key documents into Language B. The court had to balance the need for procedural fairness and the interests of the child against the potential delay and inconvenience caused by the adjournment.

Justice Campton granted the adjournment on the condition that Mr Mady's legal representatives ensure all necessary documents are translated and his evidence and parenting orders are finalised by the new trial start time. The court also required Mr Mady to serve a minute of his final parenting orders and proof of evidence by 9:30am on the day of the rescheduled trial. The adjournment was granted in the interests of justice and the best interests of the child, X, considering the assurances provided by Mr Mady's counsel and the trial plan submitted by the parties.

In summary, the court granted the adjournment to allow for translation of documents and finalisation of evidence, subject to strict conditions to ensure the trial could proceed efficiently the following day. This decision was made to uphold the principles of procedural fairness and to protect the best interests of the child.

Orders