Jabbar and Gade (No. 2)

[2018] FamCAFC 154

FAMILY COURT OF AUSTRALIA

JABBAR & GADE (NO. 2) [2018] FamCAFC 154

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where there are a number of appeals on foot relating to the same factual history – Where the most efficient use of resources would be to consolidate the appeals – Where the applicant’s substantive appeal is against final parenting and property settlement orders – Where the applicant appeals against orders dismissing a stay application – Expedition not opposed – Where expedition is the most efficient use of the parties’ and the court’s resources – Order made consolidating appeals –  Application for expedition granted.

Family Law Act 1975 (Cth)

APPLICANT: Ms Jabbar

RESPONDENT:	Mr Gade
INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW

FILE NUMBER: NCC 2265 of 2015

APPEAL NUMBER: EA 91 of 2018

DATE DELIVERED: 8 August 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 8 August 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 2 July 2018

LOWER COURT MNC: [2018] FCCA 2041

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT:	Mr Bithrey
SOLICITOR FOR THE RESPONDENT:	NLS Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’ S LAWYER: Legal Aid NSW

Orders

1. Appeals EA 71 of 2018 and EA 91 of 2018 be consolidated.

2. Appeals EA 71 of 2018 and EA 91 of 2018 be expedited.

3. The Registrar is directed to conduct a procedural hearing in relation to appeal EA 91 of 2018 as soon as practicable.

4. In the event there is a full trial transcript in relation to appeal EA 71 of 2018, the registrar is requested to notify the parties accordingly and, if it is agreed, to include those additional days of transcript as may be required in the electronic transcript for the appeal.

5. The costs of this application to be costs in the stay appeal (EA 91 of 2018).

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 (No. 2) 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 91 of 2018
File Number: NCC 2265 of 2015

Ms Jabbar

Applicant

And

Mr Gade

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in an Appeal filed on 6 July 2018, Ms Jabbar (“the applicant”) seeks an order that her appeal against the dismissal of interim parenting and stay of orders applications made by Judge Terry on 2 July 2018 be expedited.  Those orders were made in relation to proceedings between the applicant and Mr Gade (“the respondent”). 

2. The judges of appeal have delivered numerous judgments on interlocutory applications and requests for expedition in the life of the proceedings undertaken at first instance.  Suffice to say that the most recent decision in the appellate jurisdiction is that of Aldridge J on 5 June 2018.  His Honour’s decision gives a precis of the proceedings current at that date. 

3. His Honour’s reasons for judgment dealt with an application by the applicant for expedition of her substantive appeals against the final parenting and property settlement orders made by Judge Terry on 11 May 2018.  Her application for expedition was unsuccessful.  It had been supported by the respondent but not by the Independent Children’s Lawyer (“the ICL”).

4. The sense one gains from his Honour’s reasons for decision is that the respondent’s support was proffered so as to bring this extensive litigation, made somewhat remarkable by the volume of interlocutory applications at first instance and on appeal, to an end.  The majority of those application have been prosecuted at the behest of the applicant.  In one sense this is understandable, given that the decisions have been largely in the favour of the respondent and the consequences for her have been very serious.  But, it must be pointed out, the raft of applications brought by the applicant have not had a good success rate.  Be that as it may, his Honour at [25] noted that the difficulties identified by the applicant and relied upon by her in support of her application for expedition could largely be addressed by a successful application to stay the substantive orders.

5. An application for a stay was heard by her Honour, and, as is self-evident, was unsuccessful.  It follows that his Honour’s anticipation that the remedy sought by the applicant might be addressed at first instance has not come to pass.

6. In exchanges this morning, the applicant readily agreed that the most efficient use of resources, hers and by implication, the courts, would be to see the substantive appeal consolidated with the appeal against the stay and other orders; and for those consolidated appeals to be expedited. 

7. This is the most sensible way to proceed.  Counsel who appears for the respondent agrees with the obvious desire to minimise the financial and personal stress associated with numerous appearances in this court and to avoid the prospect of two separate appearances in the current two appeals.  The ICL neither supports nor opposes expedition but embraced the concept that this would be the most efficient use of the parties’ and court’s resources.  I agree.

8. The applicant indicates she has filed her appeal books in the substantive appeal and will be in a position to file the other appeal books very quickly.  A timeframe in the vicinity of 10 days was mentioned. 

9. It would not be necessary to convene a special sitting of the full court so as to deal with an expedited consolidated appeal.  The case warrants expedition but it is not so urgent that a special sitting outside the sittings already diarised for the court would be justified. 

10. With that in mind and what I understand to be the state of the calendar, these consolidated appeals could expect to be listed in October or early November 2018.  This seems to be a sensible timeframe given the magnitude of work that needs to be done to bring both appeals on for hearing. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 8 August 2018.

Associate: 

Date:  8 August 2018