Salah and Aharat - [2008] FamCA 19

FAMILY COURT OF AUSTRALIA

SALAH & AHARAT

[2008] FamCA 19

FAMILY LAW – COSTS – Costs certificate

APPLICANT:

Mr Salah

RESPONDENT:

Ms Aharat

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

SYC

5502

2007

DATE DELIVERED:

16 January 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

STEVENSON J

HEARING DATE:

2 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweet

SOLICITOR FOR THE APPLICANT:

Stojanovic Solicitors

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Williamson Isabella

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Orders

I make the following orders:

That the Court grants to the applicant, Mr Salah, a costs certificate pursuant to section 10(3) of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to organise payment under that Act to him in respect of any such part as the Attorney-General considers appropriate of any costs incurred by him in relation to the discontinued proceedings and this review.

IT IS NOTED that publication of this judgment under the pseudonym Salah & Aharat is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 5502 of 2007

MR SALAH

Applicant

And

MS AHARAT

Respondent

APPLICATION FOR A CERTIFICATE PURSUANT TO THE FEDERAL PROCEEDINGS (COSTS) ACT 1981

the proceedings

This is a review by the father, Mr Salah, of an order dismissing his application for a certificate pursuant to the Federal Proceedings (Costs) Act 1981. His application was refused by Judicial Registrar Johnston on 31 July 2007. The father and Ms Aharat, the mother, were involved in litigation concerning their child, who was born in November 2001. On 24 July 2007 some form of interlocutory application came before Judicial Registrar Loughnan in a duty list. Apparently the Judicial Registrar indicated a view as to the probable outcome of part of the interlocutory proceedings, which related to the school which the child should attend, when the matter was initially mentioned before him. At this time the Judicial Registrar had read no affidavit evidence.
It seems that the matter was then stood down in the list to 2:15pm and ultimately re-mentioned at 3.53pm (exhibit 1). An application was then made on behalf of the father that the Judicial Registrar disqualify himself. This application was successful and the proceedings were then listed before Judicial Registrar Johnston on 31 July 2007. On that day a number of interim parenting orders were made and the father’s application for a certificate was refused.
The review came before me on 2 November 2007. I was obliged to stand the matter down in the list to enable the father’s legal representative to obtain a transcript of the proceedings before Judicial Registrar Loughnan on 24 July 2007. Without this transcript, the only evidence before me were the orders and judgment of Judicial Registrar Johnston of 31 July 2007. Extensive written submissions were filed on behalf of the father, much of…

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 Salah and Aharat

Details

AGLC: Salah and Aharat [2008] FamCA 19
Case: [2008] FamCA 19
Decision Date: 16 January 2008

CaseChat Overview and Summary

In the matter of *Salah and Aharat*, heard before Stevenson J, the applicant, Mr Salah, sought a costs certificate in relation to discontinued proceedings and a subsequent review. The precise nature of the original dispute between Mr Salah and Aharat is not detailed, but the application for the costs certificate indicates that Mr Salah incurred costs in relation to these proceedings.

The central legal issue before the Court was whether it was appropriate to grant Mr Salah a costs certificate under section 10(3) of the *Federal Proceedings (Costs) Act 1981*. This required the Court to consider the circumstances of the discontinued proceedings and the review, and to form an opinion on the appropriateness of the Attorney-General organising payment of Mr Salah's costs.

Stevenson J reasoned that a costs certificate should be granted, opining that it would be appropriate for the Attorney-General to organise payment under the *Federal Proceedings (Costs) Act 1981* to Mr Salah. The Court's decision reflects an assessment that the circumstances warranted the exercise of its discretion to certify for costs, allowing for potential reimbursement of expenses incurred by the applicant.

Accordingly, the Court ordered that a costs certificate be granted to Mr Salah pursuant to section 10(3) of the *Federal Proceedings (Costs) Act 1981*, certifying that it would be appropriate for the Attorney-General to organise payment to him in respect of such part of his costs as the Attorney-General considers appropriate.

Orders

Orders of the court

I make the following orders:

That the Court grants to the applicant, Mr Salah, a costs certificate pursuant to section 10(3) of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to organise payment under that Act to him in respect of any such part as the Attorney-General considers appropriate of any costs incurred by him in relation to the discontinued proceedings and this review.

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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