Gade and Jabbar (No.6)

[2017] FCCA 778

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.6) [2017] FCCA 778

Catchwords:
FAMILY LAW – Stay application.

Legislation:

Family Law Act 1975

Trahn & Long (No.2) (2008) FamCAFC 194

Applicant: MR GADE

Respondent: MS JABBAR

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 5 April 2017

Date of Last Submission: 5 April 2017

Delivered at: Newcastle

Delivered on: 5 April 2017

REPRESENTATION

Counsel for the Applicant: Mr Weightman

Solicitors for the Applicant: NLS Law

The Respondent: In person

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Newcastle

ORDERS

1. The mother’s application for a stay filed on 28 March 2017 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.6) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2265 of 2015

MR GADE

Applicant

And

MS JABBAR

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. I have before me an application for a stay filed by Ms Jabbar on 28 March 2017. The orders she seeks to have stayed are the orders I made on 23 March 2017 although as I understand it her primary concern is that I should stay the order which suspends her time with her children. 

3. Ms Jabbar has raised a number of other issues today, including whether other orders that I have made during the course of these proceedings should be stayed and whether I should disqualify myself or transfer this matter to another registry. I am not considering any of those matters today. The only application I am going to consider today is the application for a stay of the orders made on 23 March 2017.

4. Ms Jabbar has lodged an appeal against those orders and she informed me at the beginning of her submissions that she had been given a directions hearing or mention date for that appeal of 26 April 2017.

5. I suspended the operation of the orders until 19 April 2017. 

6. There is nothing to stop Ms Jabbar asking me on 19 April 2017 to not continue that suspension and in my view that means that there is no utility in me staying the orders that I have made in the context of the appeal because the appeal is not even going to be mentioned until after the date of 19 April has passed. 

7. I indicated to Ms Jabbar on the last occasion that I hoped that she would seek some legal advice so that we could clear what I called a couple of roadblocks out of the way to enable me to list the matter for a final hearing. The matter badly needs a final hearing. If those roadblocks are cleared out of the way I can give it that earlier rather than later and all the issues that Ms Jabbar wants to raise, such as the weight to be given to Mr Gade’s evidence about the text messages, the weight to be given to his evidence about the videos and the weight to be given to the evidence of the expert Dr K, can be considered at trial, as can any other evidence that Ms Jabbar wants to give, so that I will have what she refers to as a complete picture of the matter. 

8. Those are trial issues and the matter needs a trial. 

9. If Ms Jabbar wishes me to continue to hear the contempt applications she has filed I cannot list the parenting matter for trial at a date prior to the hearing of the contempt applications. I have to clear the contempt applications out of the way first and they are listed for hearing on a date in July. 

10. What I am going to consider doing on 19 April – and I put people on notice of this – is that if Ms Jabbar does not wish to withdraw her contempt applications I will leave them listed for hearing on the date in July and I will look at listing the parenting matter for hearing in the week commencing 7 August 

11. Ms Jabbar has asked me to stay the suspension of the spend time with orders. I am not going to do that today.  Ms Jabbar can raise with me again on 19 April which is only 14 days away, whether that stay should continue or whether the order for her to spend time with the children should revive on that date and continue until the trial date and the other parties can make submissions about that matter on that day as well.

12. I have been informed by the Independent Children’s Lawyer today that even if I were to stay the orders I made on 23 March 2017 with the effect that time between Ms Jabbar and the children was reinstated, time may not occur anyway because Rainbows have reached the end of the time they are prepared to offer to this family. We are going to run into a difficulty in any event even if the orders are reinstated or the suspension is lifted because it may be that supervised time simply cannot occur. 

13. We can discuss that further on 19 April and we can discuss listing the matter for trial but I am not satisfied that Ms Jabbar has made out a case for me to stay the orders that I made and I will consider the matter again on 19 April. 

14. Mr Weightman handed me a case of Trahn & Long (No.2) (2008) FamCAFC 194. It is a case in which there was an appeal against a refusal of a stay and in that case the Full Court set out the principles that were relevant to a stay application.

15. Ms Jabbar pointed out that the facts in this case are different to the facts in Trahn & Long. There is no doubt about that but what the case does, and there are many other cases that do exactly the same thing, is set out at paragraph 38 of the judgment the principles that apply to when the Court has to consider a stay application.

16. The onus of establishing a proper basis for a stay is on the applicant and I am not satisfied, given the short-term orders that I made and the reasons I gave for them, that Ms Jabbar has made out a case for me to stay those orders.

17. Given that the first mention date of the appeal is on 26 April 2017, Ms Jabbar’s appeal is not going to be rendered nugatory by the fact of the stay not being granted and I have some considerable reservations about whether the appeal has any strength given that I made some extremely short-term orders simply suspending an order for time.

18. I am not satisfied that it is in the best interests of the children that I stay the orders that I made; we can consider that aspect of the matter again on 19 April.

19. Ms Jabbar has raised the issue of time on the children’s birthdays but I am not going to change the order that I made on 23 March 2017 suspending her time with the children until 19 April and as Mr Weightman rightly pointed out I was aware when I made that order that the result of it would be that Ms Jabbar would not see the children on their birthdays. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:       21 April 2017