Fadel and Jarrah - [2013] FamCA 312

FAMILY COURT OF AUSTRALIA

FADEL & JARRAH [2013] FamCA 312

FAMILY LAW – PRACTICE AND PROCEDURE – Application by self-represented litigant for adjournment – Adjournment granted – Balance of self-represented litigant’s Application in a Case dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Fadel

RESPONDENT: Mr Jarrah

INDEPENDENT CHILDREN’S LAWYER: Karen L Haga & Associates

FILE NUMBER: PAC 2015 of 2011

DATE DELIVERED: 3 April 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 25 March 2013
REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mahony Family Lawyers

COUNSEL FOR THE APPLICANT: Mr Weaver

THE RESPONDENT IN PERSON: Mr Jarrah

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Haga

Orders
25 March 2013
1That the proceedings be adjourned for hearing for five days to commence on 12 August 2013.

2That leave is granted to the father to file and serve an application for the appointment of a psychologist to assess the mother for the purpose of establishing whether she suffers from a mental illness.

3I direct that such application be listed before me at 9.30am on a date to be arranged directly with my Associate.

4That otherwise with respect to the balance of the father’s Application in a Case filed 13 March 2013, I reserve my decision noting that my reasons and orders will be communicated to the parties by email as soon as I am in a position to formulate those orders and reasons.

Notations
A.The record will show that Mr Jarrah has been provided with s 121 of the Family Law Act 1975 (Cth) and has the assistance of an interpreter. In my view he is then clearly on notice of the potential consequences of any action on his part which is in breach of that section.
B.The independent children’s lawyer will contact the single expert Dr K to enquire as to Dr K’s availability to give evidence at the hearing.

C. The father has indicated his intention to brief a barrister for the final hearing.
3 April 2013
1 That the trial of this matter is adjourned for five days commencing 10am on 12 August 2013.

2That otherwise the respondent’s Application in a Case filed 13 March 2013 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY
FILE NUMBER: PAC 2015 of 2011

Ms Fadel
Applicant
And

Mr Jarrah
Respondent
REASONS FOR JUDGMENT
Introduction
1.These proceedings were listed before me for a final hearing for four days duration to commence on 25 March 2013. On 13 March 2013 the respondent father, Mr Jarrah, filed an Application in a Case which was returnable on the first day of the trial. In this application the father sought the following orders:
1.[deleted by applicant]
2.Vacated the Hearing Date 25/3/2013 the case is not ready for final hearing.
3.I…

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 Fadel and Jarrah

Details

AGLC: Fadel and Jarrah [2013] FamCA 312
Case: [2013] FamCA 312
Decision Date

CaseChat Overview and Summary

This case involved an application by Ms Fadel (the mother) and Mr Jarrah (the father) before Stevenson J of the Family Court of Australia. The proceedings were listed for a final hearing, but the father filed an Application in a Case seeking various orders, including vacating the hearing date due to the case not being ready, requesting an investigation into alleged stolen subpoenaed documents, seeking an expert report on an alleged assault of a child, and requesting the removal of the children to his care. The mother sought the dismissal of the father's application.

The court was required to determine whether to grant the father's application for an adjournment of the final hearing, and to consider the remaining orders sought in his Application in a Case. Specifically, the court had to assess the merits of the father's requests for an investigation into missing documents, the appointment of a psychologist to assess the mother for mental illness, the appointment of a psychologist to assess the children regarding an alleged assault, and the discharge of the Independent Children's Lawyer.

Stevenson J granted the father's application for an adjournment of the trial, rescheduling it for five days commencing 12 August 2013. However, the court dismissed the balance of the father's Application in a Case. The court reasoned that it had no power to investigate allegations of stolen documents, nor was it appropriate to refer such matters to the Attorney-General. Regarding the expert reports, the court found that the evidence presented by the father, including reports from Dr G, Ms L, and Mr H, fell far short of establishing that the child had been a victim of an assault, and that further examination of the children for this purpose raised concerns about their welfare. The court also found no additional material to justify discharging the Independent Children's Lawyer, noting that a previous application for this purpose had been dismissed. The court did, however, grant the father leave to file a formal application for the appointment of a psychologist to assess the mother, provided it was supported by an affidavit and listed appropriately.

Orders