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 of 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

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

2. 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.

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

4. 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

1. 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

1. 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).

2. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Omidvar & Jarah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISB ANE

FILE NUMBER: BRC 3032 of 2017

Mr Omidvar

Applicant

And

Ms Jarah

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Discontinuance of hearing and order for new hearing

1. In this matter, there is, in essence, an application which Counsel on behalf of all of the parties, including the Independent Children’s Lawyer, join – namely that in the event that it was thought appropriate, the hearing that has to date proceeded before me be, in a sense, discontinued and resume before another Judge:  that is, to start anew before another Judge. 

2. I do not intend to deliver lengthy reasons. 

3. I am satisfied that the interests of justice in this case require that course to be taken.  In arriving at that conclusion, I have taken into account the costs to the parties, on an emotional sense and the costs to the public purse, in a financial sense.  Those costs, however, are, in my view, secondary to the most important part of our legal system: namely, that those who are enjoined in it have faith in the integrity of the process. 

4. For the reasons that relate to concerns raised, which led to the adjournment of the proceedings earlier to today, I cannot be satisfied, even if I were to continue in the process of the trial itself in any manner designed to attempt to remedy those concerns, that those engaged in it could have the necessary satisfaction in the integrity of the process.

5. For those very short reasons, then, I consider that the interests of justice require me to discontinue my participation in the trial to date. 

6. In an administrative sense, the Court intends to relist the matter before Carew J.  The listing will be for five days, commencing on 6 April 2020.  That is the week before Good Friday.  The listing will go into 14 April which is the day after Easter Monday.  That listing is only made possible as a consequence of changes in my diary and her Honour’s diary to accommodate the same.  For that reason, I had not intended to ask of Counsel whether they are available or not. 

7. The concern of the Court is to ensure that the matter is accorded significant priority, given the history to date in the attempts to finalise it. So, in essence, Carew J will take this matter; I will take a matter that has been listed before her Honour and move another matter to accommodate that transference as between our lists. So I will make an order listing the matter before Carew J for five days, commencing on 6 April; her Honour will undertake a Case Management Hearing this coming Thursday, 5 March at 9.30 am in furtherance of that listing.

8. So that the parties are aware, the other thing that I have done is speak to the appropriate person within the Court to ensure that arrangements are made to book an interpreter/translator for, I thought, four days of the hearing – thinking that the evidence that required the presence of an interpreter provided by the Court for the purpose of taking evidence could be accommodated within the first four days of the trial itself.  It is a matter for each of the parties, in terms of their engagement with an interpreter to assist them in their understanding of the process; the interpreter provided by the Court, the services of that person will be limited to them facilitating the taking of evidence in the trial.

9. The other thing I thought appropriate is to require that the legal representatives provide back the Transcript that has been provided.  I will make an order that the Court’s copy of the transcript be placed in an envelope and sealed with an order not be opened without order of the Court.  It is highly likely that I will include in the envelope a very, very brief explanation of the process that has led to the transcript being sealed, in case there is any need to have regard to that in my absence; in that way, it seems to me, I can do all that can be done properly to ensure that, through inadvertence, her Honour is not made aware of the contents of the Transcript. 

Oral Applications for Costs Certificates

1. The substantive proceedings are for parenting orders in relation to the child of the parties.  The proceedings have already occupied a number of hearing days, including evidence.  In respect of those hearing days, each of the parties and the Independent Children’s Lawyer engaged Counsel; the parties were represented by solicitors also.  As a consequence of issues arising in relation to the translation, which was required for this particular proceeding, the matter was adjourned to recommence before myself this morning.  Having heard submissions from Counsel on behalf of each of the parents and the Independent Children’s Lawyer, I determined that the interests of justice in the circumstances of this particular matter required that the hearing of the proceeding before myself be discontinued.

2. Having undertaken inquiries, it has been determined that it is possible for the Court to accommodate a new hearing before another Judge of the Court in this Registry.  That hearing is to commence on 6 April 2020.  The matter is listed for five days before Carew J. 

3. The circumstances in this particular matter, which led to its discontinuance – in the sense of the discontinuance of the proceeding and the order for a new hearing of the proceeding to commence before Carew J – were clearly not as a consequence of any neglect, default or improper act of any of the parties to the proceedings.  The discontinuance and new hearing are not attributable to those features or particulars, and I am easily satisfied of that. 

4. Having afforded to the parents and the Independent Children’s Lawyer the opportunity to make oral applications for a costs certificate in respect of the proceedings to date – being the hearing of proceedings which I have ordered discontinued.  I am also satisfied that the matters which led to this matters beyond any of the parents’ control; and also outside the control of the Independent Children’s Lawyer. 

5. Reference may helpfully be made to authorities such as a Furnari & Furnari,[1] a decision of the Full Court of this Court.  Additionally, in Ward & Schembri,[2] Guest J undertook a helpful review of decisions which predated his June 2005 Judgment; in Re Morris; Morris & Maroudas[3] Muirhead J, at page 701, said the following: 

   In my opinion, sub-section 3, as is the case with sub-section 2, seeks to grant relief to litigants whose liability for costs has increased by reason of the fact that a hearing on foot is aborted by circumstances not contributed to by fault or neglect of any party to the proceedings.  It is, in my view, an extension to the relief granted under sub-section 2, which is more specific in setting out the circumstances.  It may, for instance, be referrable to cases where cases where the sickness or death of counsel intervenes under circumstances which require a discontinuance of the hearing which is under way at the time - probably a rare event - but one which is a matter of justice may persuade a court in the interests of justice to recommence the hearing de novo.  It may also apply to disruption of a hearing or interference with the court’s capacity to continue the hearing by external causes. 

   [1] [1998] FamCA 171.

   [2] (2005) FLC 93-229.

   [3] (1986) 66 ALR 699.

6. I am satisfied that the circumstances in this particular case enliven the operation of s 10(3) of the Act.

7. As I have said, it is clear that the circumstances which are resulted in the findings that I have arrived at – namely, that the interests of justice require the course I have taken – were not the fault of either of the parents or the Independent Children’s Lawyer; nor were they the result of any neglect or improper act by either of the parents or the Independent Children’s Lawyer.  Thus, I am persuaded that the relevant section of the Act – 10(3) – applies in the circumstances. 

8. I also note that the Act itself provides no guidelines for the exercise of the discretion to make an order sought now by Counsel on behalf of each of the parents and the Independent Children’s Lawyer. 

9. Whilst I appreciate that the funds provided to the legal representatives in the proceeding are of themselves taken from the “public purse”, and that a costs certificate, if granted, would, in one sense, draw on the same source of funds, I am still persuaded that it just that I exercise the discretion afforded by s 10(3) of the Act in favour of granting to each of the parents, and to the Independent Children’s Lawyer, a costs certificate.

10. For these short reasons, delivered orally, then, I will make orders in the following terms. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 March 2020.

Associate: 

Date:              2 March 2020