SAYID & ALAM - [2020] FamCA 400

FAMILY COURT OF AUSTRALIA

SAYID & ALAM

[2020] FamCA 400

FAMILY LAW – PRACTICE AND PROCEDURE – matter listed for six day trial – where the mother has recently become self-represented – where discretion of s 102NA(1)(c)(iv) is applied – where in the circumstances of the COVID-19 pandemic and procedural fairness requires trial to be adjourned – final hearing dates adjourned – interim hearing ordered – orders made for interim hearing to receive evidence from both parties without cross-examination

Family Law Act 1975 (Cth) ss 69ZT, 102NA, 102NB(c)

APPLICANT:

Mr Sayid

RESPONDENT:

Ms Alam

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

3215

2015

DATE DELIVERED:

15 May 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

15 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lawson

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

THE RESPONDENT IN PERSON:

Ms Alam

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dr McConaghy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Weaver

Orders

The final hearing listed on 29 May 2020 for 6 days be vacated.
The matter be listed for at 10:00 am on 29 May 2020 for interim hearing to be conducted by Microsoft Teams.
Orders be made in accordance with the document titled “Father’s Minute of Order” as initialled by me, dated today and placed with the papers.
The requirements of s 102NA(2) of the Family Law Act 1975 (Cth) apply to cross-examination, NOTING that further necessary directions will be made when the matter is listed for Final Hearing.
I DIRECT the Independent Children’s Lawyer to take all necessary steps to organise the conduct of a mediation, with such mediation to take place prior to 29 May 2020.

IT IS NOTED THAT

(A)For the purposes of the interim hearing, both the parties will rely upon their Trial Affidavits, together with Expert Evidence produced by Dr FF.
(B)When the question of mediation was raised with the parties, it appeared that neither party saw a prospect of success but were prepared to make an attempt.

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 Sayid & Alam 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 SYDNEY

FILE NUMBER: SYC 3215 of 2015

Mr Sayid

Applicant

And

Ms Alam

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.

In proceedings SYC 3215 of 2015, these proceedings have been in the Court for some 5 years. They are currently listed for final hearing to commence on 29 May…

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 SAYID & ALAM

Details

AGLC: SAYID & ALAM [2020] FamCA 400
Case: [2020] FamCA 400
Decision Date: 15 May 2020

CaseChat Overview and Summary

In the matter of *Sayid & Alam*, heard before Harper J, the dispute concerned a final hearing scheduled for six days, which was adjourned due to the mother recently becoming self-represented. The court considered the application of section 102NA(1)(c)(iv) of the *Family Law Act 1975* (Cth) in light of the circumstances of the COVID-19 pandemic and the requirements of procedural fairness.

The primary legal issue before the court was whether to grant an adjournment of the final hearing. This involved an assessment of the discretion afforded by section 102NA(1)(c)(iv) of the *Family Law Act 1975* (Cth), which permits the court to adjourn proceedings if it is satisfied that it is in the interests of justice to do so, considering factors including the need to ensure procedural fairness.

Harper J reasoned that the recent self-representation of the mother, coupled with the prevailing conditions of the COVID-19 pandemic, necessitated an adjournment to ensure procedural fairness. The court determined that the interests of justice would be better served by adjourning the final hearing. Consequently, the final hearing dates were vacated, and an interim hearing was ordered to be conducted via Microsoft Teams. The court also made orders regarding cross-examination under section 102NA(2) of the *Family Law Act 1975* (Cth) and directed the Independent Children’s Lawyer to organise mediation prior to the interim hearing.

Orders

Orders of the court

The final hearing listed on 29 May 2020 for 6 days be vacated.

The matter be listed for at 10:00 am on 29 May 2020 for interim hearing to be conducted by Microsoft Teams.

Orders be made in accordance with the document titled “Father’s Minute of Order” as initialled by me, dated today and placed with the papers.

The requirements of s 102NA(2) of the Family Law Act 1975 (Cth) apply to cross-examination, NOTING that further necessary directions will be made when the matter is listed for Final Hearing.

I DIRECT the Independent Children’s Lawyer to take all necessary steps to organise the conduct of a mediation, with such mediation to take place prior to 29 May 2020.

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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