Malouf & Tuma (No 2) - [2024] FedCFamC2F 177

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Malouf & Tuma (No 2) [2024] FedCFamC2F 177

File number(s): HBC 187 of 2023

Judgment of: JUDGE DICKSON

Date of judgment: 31 January 2024

Catchwords: FAMILY LAW – PARENTING – Interim hearing – section 69ZL ex tempore reasons – Final orders made at Trial in 2018 – Previous findings of family violence against the husband – No time ordered – Father has issued new parenting proceedings – Orders made for Specific Issues Report – Father seeks to specify Court Child Expert to undertake the Report – Father alleges potential bias by Court Child Expert nominated by the Court due to professional training – Litigants not to dictate to the Court who shall be Court Child Expert for the purposes of Reports.

Legislation: Family Law Act 1975 (Cth) ss 11D, 62G, 69ZL, 69ZW, 117.

Cases cited:
Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337

Goode & Goode (2006) FLC 93-286

Johnson & Johnson (2000) 201 CLR 488

Rice & Asplund (1979) FLC 90-725

Vale & Vale [2016] FamCA 307

Division: Division 2 Family Law

Number of paragraphs: 73

Date of hearing: 31 January 2024

Place: Adelaide

Applicant: Self-represented

Solicitor for the Respondent: BK Legal

Solicitor for the Independent Children's Lawyer: Adelta Legal
ORDERS

HBC 187 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MALOUF

Applicant

AND:
MS TUMA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

31 JANUARY 2024

THE COURT ORDERS THAT:
1.To give effect to paragraphs 5, 6, 7 and 8 of the orders made on 8 August 2023 and paragraph 1 of the orders made on 27 October 2023, Court Child Expert Ms B shall undertake the said Specific Issues Report and interviews.
2.The said Specific Issues Report shall be released to the parties and the Independent
Children’s Lawyer if possible by 31 May 2024.
3.The father’s Application in a Proceeding filed on 6 December 2023 and the mother’s Response filed 12 January 2024 are hereby dismissed.
4.Any Subpoena filed by either the mother of the father is directed to be made specially returnable before Judge Dickson and is not to be considered by a Judicial Registrar of the Court.
5.Within twenty (28) days the father do file and serve a Financial Statement.
6.The application for costs of the mother in the sum of $900 (GST inclusive) and the
application for costs of the Independent Children’s Lawyer in the sum of $900 (GST
inclusive) be adjourned for consideration to 24 July 2024 at 9:30am (City N time).
7.The parties Final Orders Applications be listed for directions only on 24 July 2024 at
9:30am (City N time) such hearing to take place in open Court on a face-to-face basis but with leave granted to the father to appear by way of Microsoft Teams.

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…

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 Malouf & Tuma (No 2)

Details

AGLC: Malouf & Tuma (No 2) [2024] FedCFamC2F 177
Case: [2024] FedCFamC2F 177
Decision Date: 31 January 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter between Mr Malouf and Ms Tuma involved a parenting dispute. The court had previously made findings of family violence against Mr Malouf and issued final orders in 2018. Mr Malouf had issued new parenting proceedings, seeking to specify the Court Child Expert to undertake a Specific Issues Report. He alleged potential bias by the Court Child Expert nominated by the Court due to her professional training. The court was required to decide whether the father could dictate to the court who shall be the Court Child Expert for the purposes of reports.

The court considered that litigants could not dictate to the court who shall be the Court Child Expert for the purposes of reports. The court held that the father's application to specify the Court Child Expert was dismissed. The court ordered that Court Child Expert Ms B shall undertake the said Specific Issues Report and interviews. The court further ordered that the father's application and the mother's response were dismissed and that any subpoena filed by either party be made specially returnable before Judge Dickson. The court also directed that the father file and serve a Financial Statement within 28 days, and that the parties' Final Orders Applications be listed for directions on 24 July 2024.

The court's final orders included that Court Child Expert Ms B shall undertake the Specific Issues Report and interviews, to be released by 31 May 2024. The father's application and the mother's response were dismissed, and any subpoenas were to be made specially returnable before Judge Dickson. The father was directed to file and serve a Financial Statement within 28 days, and the parties' Final Orders Applications were listed for directions on 24 July 2024. The court's reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders

Orders of the court

HBC 187 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MALOUF

Applicant

AND:

MS TUMA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

31 JANUARY 2024

THE COURT ORDERS THAT:

1. To give effect to paragraphs 5, 6, 7 and 8 of the orders made on 8 August 2023 and paragraph 1 of the orders made on 27 October 2023, Court Child Expert Ms B shall undertake the said Specific Issues Report and interviews.

2. The said Specific Issues Report shall be released to the parties and the Independent

Children’s Lawyer if possible by 31 May 2024.

3. The father’s Application in a Proceeding filed on 6 December 2023 and the mother’s Response filed 12 January 2024 are hereby dismissed.

4. Any Subpoena filed by either the mother of the father is directed to be made specially returnable before Judge Dickson and is not to be considered by a Judicial Registrar of the Court.

5. Within twenty (28) days the father do file and serve a Financial Statement.

6. The application for costs of the mother in the sum of $900 (GST inclusive) and the

application for costs of the Independent Children’s Lawyer in the sum of $900 (GST

inclusive) be adjourned for consideration to 24 July 2024 at 9:30am (City N time).

7. The parties Final Orders Applications be listed for directions only on 24 July 2024 at

9:30am (City N time) such hearing to take place in open Court on a face-to-face basis but with leave granted to the father to appear by way of Microsoft Teams.

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 to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

Full text does not contain this section.

File number(s):	HBC 187 of 2023
Judgment of:	JUDGE DICKSON
Date of judgment:	31 January 2024
Catchwords:	FAMILY LAW – PARENTING – Interim hearing – section 69ZL ex tempore reasons – Final orders made at Trial in 2018 – Previous findings of family violence against the husband – No time ordered – Father has issued new parenting proceedings – Orders made for Specific Issues Report – Father seeks to specify Court Child Expert to undertake the Report – Father alleges potential bias by Court Child Expert nominated by the Court due to professional training – Litigants not to dictate to the Court who shall be Court Child Expert for the purposes of Reports.
Legislation:	Family Law Act 1975 (Cth) ss 11D, 62G, 69ZL, 69ZW, 117.
Cases cited:	Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337 Goode & Goode (2006) FLC 93-286 Johnson & Johnson (2000) 201 CLR 488 Rice & Asplund (1979) FLC 90-725 Vale & Vale [2016] FamCA 307
Division:	Division 2 Family Law
Number of paragraphs:	73
Date of hearing:	31 January 2024
Place:	Adelaide
Applicant:	Self-represented
Solicitor for the Respondent:	BK Legal
Solicitor for the Independent Children's Lawyer:	Adelta Legal

HBC 187 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MALOUF Applicant
AND:	MS TUMA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE DICKSON
DATE OF ORDER:	31 JANUARY 2024