Jabbar and Gade - [2018] FamCAFC 105

FAMILY COURT OF AUSTRALIA

JABBAR & GADE

[2018] FamCAFC 105

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of her appeal against final parenting and property orders – Where the appeal raises serious parenting issues – Where the bases on which the applicant brings her application do not support an order for expedition – Application dismissed.

Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Ms Jabbar

RESPONDENT:

Mr Gade

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

2265

2015

APPEAL NUMBER:

2018

DATE DELIVERED:

5 June 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

29 May 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 May 2018

LOWER COURT MNC:

[2018] FCCA 1056

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Levick

SOLICITOR FOR THE RESPONDENT:

NLS Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Maitland solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The Application in an Appeal filed on 21 May 2018 is dismissed.

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 Jabbar & Gade 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 71 of 2018
File Number: NCC 2265 of 2015

Ms Jabbar

Applicant

And

Mr Gade

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 21 May 2018, Ms Jabbar (“the applicant”) seeks an order that her appeal against parenting and property orders made by Judge Terry on 11 May 2018 be expedited. Those orders were made in proceedings between the applicant and Mr Gade (“the respondent”).
The parties have two children who were born in 2006 and 2012. The orders provided that they live with the respondent, who was to have sole parental responsibility for them. The children were to spend no time and have no communication with the applicant. Injunctions were made preventing her from removing the children from the care of the respondent or from any school they were attending and from approaching within 200 metres of the children, their home, school or any place they were known to be present.
In the property proceedings, the respondent was to receive the two properties owned by the parties in Australia, subject to their mortgages. The applicant was to receive the parties’ property in India and cash in the sum of $132,000. In addition, the respondent was to pay to the applicant $81,956.82. The parties were to retain their own other assets, including their superannuation.
The application for expedition was not opposed by the respondent. Indeed, his view was that he would prefer to have the court proceedings finished as quickly as possible. The Independent Children’s Lawyer submitted that a case for expedition had not been made out.
Whilst it is not directly relevant as it applies to trials, r 12.10A of the Family Law Rules 2004 (Cth) is a useful guide to the matters to be considered on an application for expedition of an appeal. It provides:
12.10AExpedition
(1)A party may apply to expedite the first day before the Judge.
Note:For the procedure for making an application in a case, see Chapter 5.
(2)The court may take into account:
(a)whether the applicant has acted reasonably and without delay in the conduct of the case;
(b)whether the application has been made without delay;
(c)any prejudice to the respondent; and
(d)whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
(3)If the court is satisfied of the matters in subrule (2), the court may:
(a)set an early first day before the Judge; and
(b)make procedural orders for the further conduct of the case.
(4)For paragraph (2)(d), a relevant circumstance includes:
(a)whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;
(b)whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;
(c)whether the applicant is suffering financial hardship that:
(i)is not caused by the applicant; and
(ii)cannot be rectified by an interim order;
(d)whether the continuation of interim orders is causing the applicant or a child hardship;
(e)whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);
(f)whether the case involves allegations of child sexual, or other, abuse; and
(g)whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.
The primary ground for expedition advanced by the applicant is that she is prevented from working because in October 2017 she was denied a “Working with Children” clearance. She asserts that a successful appeal will establish that she poses no risk to children and therefore she will be able to obtain the necessary clearance and resume her work. I shall return to this aspect of the matter shortly. But, first, it is necessary to set out some relevant context.
The respondent’s contention at the hearing was that the applicant posed a risk of physical and psychological harm to the children. That contention was accepted by the primary judge. Her Honour’s finding was significantly supported by two videos and a set of text messages which she found, contrary to the applicant’s contention, to be genuine records of the applicant’s conduct.
The respondent said that he recorded the videos on 9 March 2013.
According to the primary judge at [153], the first video records an “adult female [who] is extremely agitated and is screaming in Hindi at a person who is not depicted”.
Her Honour described the second video in the following terms:
155.IMG_0635 lasts for 2.37 minutes and is very disturbing to watch. The adult female can be seen wandering around the room screaming for several minutes while a baby crawls on the floor and on a couple of occasions tries to pull himself up on her leg. The female child tries to get the baby. On several occasions adult female grabs hold of the female child and whacks her repeatedly on the upper and lower back before letting her go. The father’s counsel submitted that on one occasion he counted 13 blows and I have no reason to doubt that although viewing the video would confirm it or otherwise.
The respondent also relied on text messages he said were sent on 25 July 2015 which contained threats against the children.
The applicant denies that she is the woman in the videos and indeed asserts that both the videos and the text messages were fabricated by the respondent. Many of the grounds of appeal challenge the primary judge’s rejection of that proposition.
The relevance of this challenge to the present application is that the applicant asserts that she was denied a Working with Children clearance because of the material contained within the two videos and the text messages. Her evidence is that the Police received this material when the respondent went to them to lodge a criminal complaint against her and that the material, in turn, formed the basis for the refusal of her Working with Children clearance.
The applicant submits that if she is successful on the appeal, the videos and the text messages will be shown to have been fabricated and that there will therefore no longer be any basis for denying her a Working with Children clearance.
The applicant described her need for such a clearance in the following terms in her affidavit in support of her application sworn 21 May 2018:
6.As I am a researcher in [the medical field], I have to deal with vulnerable people, without this clearance, I cannot pursue my work. This will entirely destroy my earning capacity for my rest of the life.
(As per the original)
The applicant has a master’s degree and a PhD in the medical field. In 2015 she completed another qualification in a different field.
The primary judge described the applicant’s work history in the following manner:
427.The mother began working as a volunteer at [an organisation] in February 2015 and in October 2015 she told [Dr H] that she had been offered a job … at [that organisation]. She said that she was paid an “allowance” of $500.00 per week (equating to $26,000.00 per annum) by [the organisation’s parent organisation]. She said that she was also in receipt of Newstart Allowance of $E230.00 per week. I have no means of verifying the mother’s income from [the parent organisation]. Despite being requested to do so she has never produced any pay slips or bank statements or any other evidence to support her claim.
…
430.It is a relevant matter that the mother did not pursue employment in Australia between 2008 and 2015. There was no evidence that the father pressed her to look for a job and she was engaged in home duties including caring for [the younger child] who was still not four at the time of separation. The mother is very highly qualified and it is difficult to see why well paid employment should not be available to her but because of the roles the parties adopted during the marriage she is behind the father in being established in the workforce with a good reputation and relevant experience and she is also well behind him in accruing superannuation.
…
439.I will take the mother’s failure to provide proper information about her employment and income earning potential into account as a specific matter but other than that I cannot do anything with the mother’s failure to make full and frank disclosure.
The applicant informed me that she is presently studying for a second PhD. The applicant’s evidence does not disclose whether or not she is still working or still engaged at the organisation referred to by the primary judge. She provided no detail as to why her lack of a Working with Children clearance prevents her from working at all.
Further, it is far from clear to me that the appeal, even if successful, is likely to result in the outcome that the applicant seeks, which is a finding that the videos and the text messages were fabricated by the respondent. Even if a finding is made that the primary judge’s fact finding process was flawed, it would be most unlikely that the court hearing the appeal would take on the task of attempting to determine for itself whether or not the material was fabricated. The most likely outcome in the event of success is that the matter would be remitted for rehearing by another judge.
The applicant also pointed out that she has had no relationship with the children at all for the last 14 months. She did not submit, however, that the children were at any risk of harm in the respondent’s care.
None of these considerations support expediting the appeal.
The applicant then turned to the property orders made by the primary judge and submitted that the nature of these orders also supported her application for expedition.
The payment to the applicant of $81,956.82 and the transfer of the two properties is to take place on or before 19 July 2018. The difficulty for the applicant is that she resides in one of those properties and a transfer would mean that she would have to find somewhere else to live. She contends that if she is successful on the appeal she will not have to do so.
The immediate difficulty with this submission is that it is impossible for an appeal, even if expedited, to be heard before 19 July 2018, let alone determined. Even if the appeal could be prepared for hearing within a week or so, which would be difficult but not impossible, there are no hearing dates that are available that would permit the appeal to be heard and a reserved judgement prepared before that date.
The appropriate remedy to address these concerns is a stay of the property orders and, indeed, the applicant has filed an Application in a Case seeking such a stay. That was listed before the primary judge on 4 June 2018 and was adjourned to 6 June 2018. It is therefore quite possible that the orders will be stayed, pending the outcome of the appeal. That, however, is of course entirely a matter for the primary judge and not for me.
The issue, ultimately, is whether I consider that this appeal, which undoubtedly raises serious parenting issues, should be heard in priority to other appeals which also raise serious parenting issues. Given the basis of the claim for expedition and the lack of evidence in support I am not satisfied that it should.

Conclusion

The application for expedition will be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 5 June 2018.

Legal associate:

Date: 5 June 2018