Pachris & Tajir - [2023] FedCFamC1A 60

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pachris & Tajir [2023] FedCFamC1A 60

Appeal from: Pachris & Tajir (No 2) [2022] FedCFamC2F 1296

Appeal number(s): NAA 232 of 2022

File number(s): PAC 3726 of 2021

Judgment of: ALDRIDGE J

Date of judgment: 11 April 2023

Catchwords: FAMILY LAW – APPEAL – Appeal from parenting orders – Unacceptable risk of harm – Where the appellant sought leave to file an Application in an Appeal for the vacation of the hearing and leave to adduce further evidence – Where the further evidence was a video of the parties’ sexual interaction – Where the appellant contends that the video could show error in the primary judge’s findings – Where there is not a proper ground of appeal available that could challenge the primary judge’s reasons – Where counsel for the appellant has not viewed the video – Where the appellant consented to paying the costs of the respondent and the Independent Children’s Lawyer thrown away as a result of the application – Orders made adjourned the appeal and the balance of the application and for the legal representatives to view the video.

Legislation: Family Law Act 1975 (Cth) s 68B

Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Number of paragraphs: 38

Date of hearing: 11 April 2023

Place: Sydney

Counsel for the Appellant: Mr Moutasallem

Solicitor for the Appellant: Lyons Law Group

Counsel for the Respondent: Ms Tabbernor

Solicitor for the Respondent: Santo Family Lawyers

Counsel for the Independent Children’s Lawyer: Ms Conte-Mills

Solicitor for the Independent Children’s Lawyer: Harb Lawyers
ORDERS

NAA 232 of 2022
PAC 3726 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR PACHRIS

Appellant

AND:
MS TAJIR

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

ALDRIDGE J

DATE OF ORDER:

11 APRIL 2023

THE COURT ORDERS THAT:
1.Leave is granted to the appellant to file the Application in an Appeal dated 11 April 2023 and the affidavit sworn by Mr W on 11 April 2023.
2.The hearing date of the appeal is vacated.
3.The appeal and the balance of the Application in an Appeal filed 11 April 2023 are adjourned to 14 June 2023 at 10.00 am.
4.The appellant pay the respondent’s costs fixed in the sum of $6,000 and the costs of the Independent Children’s Lawyer fixed in the sum of $4,000 thrown away by reason of the adjournment on or before 9 May 2023.
5.The balance of the costs of the respondent and the Independent Children’s Lawyer of the appeal and the Application in an Appeal filed on 11 April 2023 are reserved.
6.The Court requests that the Office of the Director of Public Prosecutions and NSW Police make available to the following lawyers in this appeal the video held by them as to the events of 20 or 21 February 2020 relating to charges against the appellant to Mr Ahmad Moutasallem, Ms Janai Tabbernor, Ms Carla Santo, Ms Karen Conte-Mills…

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 Pachris & Tajir

Details

AGLC: Pachris & Tajir [2023] FedCFamC1A 60
Case: [2023] FedCFamC1A 60
Decision Date

CaseChat Overview and Summary

Mr Pachris appealed against parenting orders made in the Federal Circuit and Family Court of Australia (Division 2) on 22 September 2022. The orders provided that the parties' two children, born in 2015 and 2017, would live with the respondent and not spend any time with Mr Pachris. An injunction was also made that Mr Pachris should not approach the respondent or the children, the respondent's home, or the children's school or extra-curricular activities. This order was made because the primary judge was satisfied that the children were at an unacceptable risk of harm if they were to spend time with Mr Pachris due to his acts of family violence and drug use. At the commencement of the appeal, counsel for Mr Pachris sought leave to file an Application in an Appeal for the vacation of the hearing and leave to adduce further evidence, namely the full video of the sexual interaction between the parties, which was taken on 20 or 21 February 2020. The application was opposed by the respondent and the Independent Children's Lawyer.

The court considered whether the video could show error in the primary judge's findings. The court noted that there was no proper ground of appeal available that could challenge the primary judge's reasons, and counsel for Mr Pachris had not viewed the video. The court also considered the conduct of the trial and the appeal, and the fact that the respondent and the Independent Children's Lawyer were only given notice of the application that morning. The court was not persuaded to accede to the application to adduce further evidence at that stage.

The court vacated the hearing date of the appeal and adjourned the appeal and the balance of the Application in an Appeal to 14 June 2023 at 10.00 am for further consideration. The court made the following orders: (1) the hearing date of the appeal is vacated; (2) the appeal and the balance of the Application in an Appeal are adjourned to 10.00 am on 14 June 2023; (3) the appellant is to pay the costs of the respondent fixed in the sum of $6,000 and the Independent Children's Lawyer fixed in the sum of $4,000 thrown away by reason of the adjournment on or before 9 May 2023; and (4) the balance of the costs of the respondent and the Independent Children's Lawyer of the appeal and the Application in an Appeal are reserved. The court also requested that the Office of the Director of Public Prosecutions and NSW Police make available to the lawyers involved in this appeal the video held by them as to the events of 20 or 21 February 2020 relating to the charges against the appellant.

Orders