OMIDVAR & JARAH - [2020] FamCA 164

FAMILY COURT OF AUSTRALIA

OMIDVAR & JARAH

[2020] FamCA 164

FAMILY LAW – PRACTICE AND PROCEDURE – Discontinuance of hearing.

FAMILY LAW – COSTS – Application for costs certificates – hearing before trial judge discontinued – new hearing necessary – discontinuance not attributable to the neglect, default or improper act of any party to the proceedings – certificates granted.

Family Law Act 1975 (Cth)

Furnari & Furnari [1998] FamCA 171
Re Morris; Morris & Maroudas (1986) 66 ALR 699
Ward & Schembri (2005) FLC 93-229

APPLICANT:

Mr Omidvar

RESPONDENT:

Ms Jarah

INDEPENDENT CHILDREN’S LAWYER:

Julie Harrington Solicitor

FILE NUMBER:

BRC

3032

2017

DATE DELIVERED:

2 March 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

3, 4, 5 & 6 February 2020 and 2 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pendergast

SOLICITOR FOR THE APPLICANT:

Munro Legal Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms Oakley

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Julie Harrington Solicitor

Orders

UPON the Undertaking today provided by Counsel for each of the parties and the Independent Children’s Lawyer and on behalf of the parties’ respective solicitors to forthwith destroy the electronic copy of the transcript of the Respondent’s evidence given on 5 February 2020 held by each of them

IT IS ORDERED THAT

The part heard final hearing of the proceedings before Justice Hogan is discontinued.
The matter is listed for final hearing for five (5) days before Justice Carew commencing at 10.00 am on 6 April 2020, at the Family Court of Australia at Brisbane.
The matter is listed for a Case Management Hearing commencing at 9.30 am on 5 March 2020 before Justice Carew.
The Court’s copy of the transcript of the Respondent’s evidence given on 5 February 2020 be placed in a sealed envelope, with such envelope to be marked “Not to be provided to any party without further Order of the Court.”

AND IT IS ORDERED BY CONSENT THAT

The father destroy the electronic copy of the transcript of the Respondent’s evidence given on 5 February 2020 held by him forthwith.

AND IT IS FURTHER ORDERED THAT

The parties have leave to make an oral application for the issue of a certificate pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth).
Each of the Applicant, the Respondent and the Independent Children’s Lawyer are granted a costs certificate pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under this Act to each of those parties and the Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by them in relation to the hearing of the matter on 3 February 2020, 4 February 2020, 5 February 2020, 6 February 2020 and 2 March 2020.

Note: The…

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 OMIDVAR & JARAH

Details

AGLC: OMIDVAR & JARAH [2020] FamCA 164
Case: [2020] FamCA 164
Decision Date: 2 March 2020

CaseChat Overview and Summary

In the Family Court of Australia, Justice Hogan presided over proceedings involving the Applicant and the Respondent, with an Independent Children’s Lawyer also participating. The central dispute concerned the discontinuance of a part-heard final hearing. This discontinuance necessitated a new hearing, leading to an application for costs certificates.

The court was required to determine whether to grant costs certificates pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth). This involved assessing whether the discontinuance of the hearing was attributable to the neglect, default, or improper act of any party.

Justice Hogan reasoned that the discontinuance of the hearing was not the fault of any party. Consequently, the court granted costs certificates to the Applicant, the Respondent, and the Independent Children’s Lawyer. These certificates indicated that it would be appropriate for the Attorney-General to authorise payment for a portion of the costs incurred by these parties in relation to the hearing dates of 3, 4, 5, 6 February 2020, and 2 March 2020. The court also made orders for the destruction of electronic copies of the respondent's evidence from 5 February 2020 and for the court's copy of that transcript to be sealed. The matter was relisted for a new final hearing before Justice Carew.

Orders

Orders of the court

UPON the Undertaking today provided by Counsel for each of the parties and the Independent Children’s Lawyer and on behalf of the parties’ respective solicitors to forthwith destroy the electronic copy of the transcript of the Respondent’s evidence given on 5 February 2020 held by each of them

IT IS ORDERED THAT

The part heard final hearing of the proceedings before Justice Hogan is discontinued.

The matter is listed for final hearing for five (5) days before Justice Carew commencing at 10.00 am on 6 April 2020, at the Family Court of Australia at Brisbane.

The matter is listed for a Case Management Hearing commencing at 9.30 am on 5 March 2020 before Justice Carew.

The Court’s copy of the transcript of the Respondent’s evidence given on 5 February 2020 be placed in a sealed envelope, with such envelope to be marked “Not to be provided to any party without further Order of the Court.”

AND IT IS ORDERED BY CONSENT THAT

The father destroy the electronic copy of the transcript of the Respondent’s evidence given on 5 February 2020 held by him forthwith.

AND IT IS FURTHER ORDERED THAT

The parties have leave to make an oral application for the issue of a certificate pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth).

Each of the Applicant, the Respondent and the Independent Children’s Lawyer are granted a costs certificate pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under this Act to each of those parties and the Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by them in relation to the hearing of the matter on 3 February 2020, 4 February 2020, 5 February 2020, 6 February 2020 and 2 March 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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