Tamal and Semak and Anor - [2018] FamCA 307

FAMILY COURT OF AUSTRALIA

TAMAL & SEMAK & ANOR

[2018] FamCA 307

FAMILY LAW – PRACTICE AND PROCEDURE – Where appropriate for application made by the Independent Children’s Lawyer to be heard ex parte –
Where property injunction order sought to assist child recovery – Where appropriate for order to be made.

Family Law Act 1975 (Cth) s 68B s 114
Family Law Rules 2004 (Cth) rr 5.12, 6.02

Tamal & Semak (No 2) [2017] FamCA 972

APPLICANT:

Ms Tamal

FIRST RESPONDENT:

Mr Semak

SECOND RESPONDENT:

Ms H Semak (aka Ms N)

INDEPENDENT CHILDREN’S LAWYER:

Ms Carroll

FILE NUMBER:

PAC

5255

2015

DATE DELIVERED:

6 March 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

6 March 2018

REPRESENTATION

APPLICANT:

No appearance

Fay Rose Legal

SOLICITOR FOR THE FIRST RESPONDENT:

Stewart Cuddy & Mockler

SECOND RESPONDENT – SELF-REPRESENTED LITIGANT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Barnett

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Crawford Ryan Lawyers Pty Ltd

Orders

Leave be granted to list this application on short notice.
Leave be granted to the Independent Children’s Lawyer to have the Application in a Case filed 5 March 2018 be heard and determined in the first instance on an ex parte basis.
Ms H Semak (also known as Ms N) be joined as Second Respondent in these proceedings as the paternal grandmother.
Until further order that Ms H Semak (also known as Ms N) be hereby injuncted and restrained from transferring, encumbering or otherwise dealing with the property located at O Street, Suburb P NSW … being the whole of the property in Folio Identifier ...
Leave is granted for service of the present Application in a Case and affidavit in support and a sealed copy of the Orders made today to be effected upon the Second Respondent by a sealed copy of such documents being served by express post on the father’s solicitors Stewart Cuddy & Mockler together with a letter requesting that the enclosed documents be provided to their client, Mr Semak, and be provided to the Second Respondent Ms H Semak (also known as Ms N) and otherwise service on the Second Respondent be effected by personal service of the Application in a Case and affidavit in support and a sealed copy of Orders made today upon Ms Semak, Q Street, Suburb R NSW … together with a letter requesting that the enclosed documents be provided to the Second Respondent, the paternal grandmother Ms H Semak (also known as Ms N).
The Application in a Case is adjourned for further judicial case management to 9.30am on Thursday, 29 March 2018.
Leave is granted to the parties and the Independent Children’s Lawyer to relist on short notice by application to the Court in chambers in appropriate circumstances.
The costs of the Independent Children’s Lawyer of today be reserved.

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

IT IS NOTED that publication…

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.

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Details

Case: [2018] FamCA 307
Decision Date: 6 March 2018

CaseChat Overview and Summary

This matter came before Foster J concerning an application by Tamal and another party, with the Independent Children’s Lawyer also involved. The dispute appears to relate to the welfare of a child and the potential disposition of property. The court considered applications for leave to proceed on short notice and for the Independent Children’s Lawyer to have an application heard ex parte. Additionally, the court addressed the joinder of Ms H Semak, identified as the paternal grandmother, as a Second Respondent.

The primary legal issues before the court were whether to grant leave for the application to be heard on short notice, whether to permit the Independent Children’s Lawyer to proceed ex parte, and whether to join Ms H Semak as a party to the proceedings. Furthermore, the court was required to determine whether to grant an injunction restraining Ms Semak from dealing with a specific property and to make orders regarding the service of documents on Ms Semak.

Foster J granted leave for the application to be listed on short notice and for the Independent Children’s Lawyer’s application to be heard ex parte. The court also granted leave to join Ms H Semak as the Second Respondent and issued an injunction restraining her from transferring, encumbering, or otherwise dealing with the property at O Street, Suburb P NSW, until further order. Orders were made for service of the application and supporting documents on Ms Semak through her son’s solicitors and by personal service at her residential address, accompanied by letters requesting the documents be provided to her. The application was adjourned for further judicial case management.

Orders

Orders of the court

Leave be granted to list this application on short notice.

Leave be granted to the Independent Children’s Lawyer to have the Application in a Case filed 5 March 2018 be heard and determined in the first instance on an ex parte basis.

Ms H Semak (also known as Ms N) be joined as Second Respondent in these proceedings as the paternal grandmother.

Until further order that Ms H Semak (also known as Ms N) be hereby injuncted and restrained from transferring, encumbering or otherwise dealing with the property located at O Street, Suburb P NSW … being the whole of the property in Folio Identifier ...

Leave is granted for service of the present Application in a Case and affidavit in support and a sealed copy of the Orders made today to be effected upon the Second Respondent by a sealed copy of such documents being served by express post on the father’s solicitors Stewart Cuddy & Mockler together with a letter requesting that the enclosed documents be provided to their client, Mr Semak, and be provided to the Second Respondent Ms H Semak (also known as Ms N) and otherwise service on the Second Respondent be effected by personal service of the Application in a Case and affidavit in support and a sealed copy of Orders made today upon Ms Semak, Q Street, Suburb R NSW … together with a letter requesting that the enclosed documents be provided to the Second Respondent, the paternal grandmother Ms H Semak (also known as Ms N).

The Application in a Case is adjourned for further judicial case management to 9.30am on Thursday, 29 March 2018.

Leave is granted to the parties and the Independent Children’s Lawyer to relist on short notice by application to the Court in chambers in appropriate circumstances.

The costs of the Independent Children’s Lawyer of today be reserved.

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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