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 would like a reservation of all subpoenas documents tell investaagte by your honour or Auttoreny General.

4.make an order to the registrar to re-produced all subpoenas missed and to be file in his Honour chamber

5.made decision to the father to have his son to make an expert report in relation assault of his son and fracture son leg

6.the father sought to make order to remove the children from their miserable situation to the father , to give the father a chance to prepare the expert report as he brought two witness an an expert report affirmed is his children were assaulted,

7.Discharge the ICL as she working against the children interested and make more damage in my children, I, will volume that damage later.

8.The father adhering by all he wrote to the court in 5/2/2013 [Affidavit, Notice of child Abuses, Family Violence Risk of Family Violence.

(errors as in original)

2.The Applicant mother, Ms Fadel, sought that the father’s application be dismissed.

3.The father relied on his affidavit sworn 13 March 2013 in support of his Application in a Case.  This affidavit indicates clearly that the father believes that sinister circumstances surrounded a fracture which the child J suffered to his leg in May 2011.  The father’s affidavit also set out the basis of his application for the discharge of the appointment of Ms Karen Haga as the Independent Children’s Lawyer.  Comments made by the father in court on 25 March 2013 demonstrated that he has a firm belief that certain subpoena documents were “stolen” from the precincts of the court on an unknown date, apparently for the purposes of damaging his case.

4.I granted the father’s application for an adjournment of the trial, which is now fixed for hearing for five days to commence on 12 August 2013.  There remain for determination the balance of the father’s Application in a Case filed on 13 March 2013.

5.As I indicated clearly to the father on 25 March 2013 I have no power to “investigate” anything to do with his allegations concerning the theft of subpoenaed documents.  On 5 February 2013 the father raised issues of missing subpoena documents with Collier J.  His Honour granted the father leave to issue ten subpoenas without further order of the court.  I can do no more than was done by Collier J on that occasion.

6.In my view, it would be entirely inappropriate for any reference to be made to the Attorney General in relation to the father’s allegations of theft of subpoenaed documents.  It is not the role of either the Attorney General or a Judge of this Court to carry out any investigation as sought by the father.

7.On 5 February 2013 Collier J made orders for the preparation of an expert report in relation to the injury to the child J’s leg.  His Honour ordered as follows:

2.That any report undertaken by any specialist or other medical practitioner engaged by [the father] is for the purpose only of reviewing on the documents provided, the injuries to the subject child alleged to be injured by the mother or those known to her.  Doctor shall not interview the children or any of them as part of the preparation of that report.

8.Apparently, the father now seeks to have the child J and/or all of the children assessed by an expert of his choosing and for that person to prepare a report.  He asserted in his affidavit that he has obtained a report from Dr G which establishes that the child was the victim of an assault.  He alleged further that he has a report from a registered nurse, Ms L, which establishes that the child suffered an assault.  Further, the father obtained a statement from Mr H of the B Cultural Organisation which he claims to be proof that the child was assaulted while in the care of the mother.

9.Dr G provided a report dated 2 March 2013 which makes it clear that he did not examine the child and received information and documents only from the father.  Dr G concluded:

The circumstances in which the fracture occurred were worrying the father as he was convinced that the fracture did not happen at the place or in the time stated in the documentation and that the mother was trying to cover up an abuse or negligence.  I am not in a position to comment on these aspects.

This statement falls very far short of establishing that the child suffered an assault while in the care of the mother.

10.In a report dated 3 April 2012 Dr G concluded:

The father was worried about the stated mechanism of injury. He indicated to me that there was a change in the stated histories.  Suspicion emanated from the changed statements.  Again this had to be verified via other means beyond my expertise.  The point that was worrying the father here was whether that sort of fracture could have been caused by an assault.  The mechanism for a spiral fracture of a long bone like the tibia is through applying torsional or rotational force to the bone; a typical mechanism would be if the foot is caught and the leg rotated on that caught foot.

As such the answer to this question is that the possibility is there.  However one must get more information about the exact mechanism of the injury and whether a torsional stress was involved when he fell off the play equipment.

Again, these opinions of Dr G fall very far short of establishing that the child was a victim of an assault as was contended by the father.

11.The statement of Mr H of B Cultural Organisation is, with respect, of no probative value whatsoever in relation to the father’s allegation that the child or children were assaulted while in the care of the mother.  He has no expertise to express any such opinions and relied only upon material provided by the father.  As such, Mr H’s report is no more than heresay and speculation.

12.The report from Ms L dated 7 March 2013 was prepared without any examination of the child J and on the basis of unidentified material provided solely by the father.  With respect, Ms L lacks the necessary qualifications to provide any opinion as to the cause of the child J’s injury.

13.I am far from persuaded that there should be any amendment to the order of Collier J in relation to the preparation of an expert report concerning alleged assaults to a child or children of the parties.  The father proffered nothing by way of evidence that Dr G or any other properly qualified medical practitioner would be assisted by an examination of the child or children.  I have real concerns as to the potential affect on J and/or all of the children of a medical examination for the purpose of the father attempting to prove assault while he or they were in the care of the mother.

14.On 14 May 2012 Collier J heard and dismissed the father’s application for discharge for the appointment of Ms Haga as Independent Children’s Lawyer.  In my view the father now brings no additional material which would justify orders as sought in his application in a case in respect of that issue.  Nothing in the father’s Affidavit of 13 March 2013 persuades me that there is any bias against him on the part of Ms Haga or any failure on her part properly to carry out the role of Independent Children’s Lawyer.

15.The father sought orally an order that the mother undergo a psychological or psychiatric examination to establish that she suffers from a mental illness.  No such application was in fact filed by the father but I granted leave to him to make this request in proper form.  I advised the father that any such application should be supported by an affidavit which identified the proposed expert and the means by which the father proposes to meet his or her professional fees.  I directed that any such application should be listed before me by arrangement with my associate.

16.For all of these reasons I dismissed the father’s Application in a Case other than the request for an adjournment of the trial which I granted on 25 March 2013.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 3 April 2013.

Associate: 

Date:  3 April 2013