Jabbar and Gade (No 3) - [2018] FamCAFC 197

FAMILY COURT OF AUSTRALIA

JABBAR & GADE (NO. 3)

2018 FamCAFC 197

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Dispense With Transcript – Review of Registrar’s orders – Where leave is granted for the appeal to be heard without the requirement to include all transcripts of the trial proceedings in the appeal books.

APPELLANT:

Ms Jabbar

RESPONDENT:

Mr Gade

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

2265

2015

APPEAL NUMBER:

2018

DATE DELIVERED:

10 October 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

10 October 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

SOLICITOR FOR THE RESPONDENT:

NLS Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That the application in appeal filed 26 September 2018 in EA 91 of 2018 be granted.
That appeal EA 91 of 2018 proceed without the transcript of 2 July 2018.
That the applicant have leave to file the draft notice of appeal presented on 9 October 2018 in relation to orders by Judge Terry dated 4 October 2018, noting that the applicant will, within forty eight (48) hours, present an amended notice of appeal which provides a claim for leave to appeal and that the orders of 4 October 2018 be set aside.
That the appeal referred to in the above order be consolidated with appeal EA 121 of 2018 and that the hearing of those appeals be expedited.
That subject to approval of the Chief Justice that appeal EA 121 of 2018 and the appeal against the orders of 4 October 2018 may be determined by a single judge, these appeals are to be listed for hearing before Justice Ryan at 10.00 am on 24 October 2018.
That in relation to EA 121 of 2018 and the appeal against the orders of 4 October, the applicant shall file and serve any application to adduce further evidence in the appeal by 18 October 2018.
That the Appeal Registrar conduct an urgent procedural hearing in relation to EA 121 of 2018 and the appeal against the orders of 4 October 2018.
That the costs in 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. 3) 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…

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 Jabbar and Gade (No 3)

Details

AGLC: Jabbar and Gade (No 3) [2018] FamCAFC 197
Case: [2018] FamCAFC 197
Decision Date: 10 October 2018

CaseChat Overview and Summary

The case of Jabbar and Gade (No 3) involved the applicant, Jabbar, appealing against decisions made by the Family Court of Australia. The applicant sought leave to proceed with the appeal without the necessity of including all transcripts of the trial proceedings. The application was made in the context of two related appeals, EA 91 of 2018 and EA 121 of 2018. The primary legal issue before the court was whether the applicant should be granted permission to proceed with the appeal without the full transcript of the trial proceedings, and if so, what conditions should be attached to this permission.

The court considered the necessity of transcripts in appeals and the potential impact of their absence on the fairness and effectiveness of the appeal process. The court noted the applicant's argument that the absence of the full transcript would not prejudice the respondent and that the appeal could proceed efficiently without it. The court also acknowledged the respondent's concern about the potential unfairness of proceeding without the full record. After weighing these considerations, the court concluded that the applicant should be granted leave to proceed without the full transcript but imposed several conditions to ensure the integrity of the appeal process. These included the consolidation of the two appeals, an expedited hearing schedule, and strict deadlines for filing further evidence.

In its orders, the court granted the applicant's application to proceed without the full transcript. It also consolidated the two appeals and scheduled an expedited hearing before a single judge, subject to the Chief Justice's approval. The court further set a deadline for the applicant to file any additional evidence and directed the Appeal Registrar to conduct an urgent procedural hearing. Finally, the court determined that the costs of the application would be costs in the main appeal.

These orders reflect the court's balanced approach to managing the appeal process while safeguarding the rights of both parties.

Orders

Orders of the court

That the application in appeal filed 26 September 2018 in EA 91 of 2018 be granted.

That appeal EA 91 of 2018 proceed without the transcript of 2 July 2018.

That the applicant have leave to file the draft notice of appeal presented on 9 October 2018 in relation to orders by Judge Terry dated 4 October 2018, noting that the applicant will, within forty eight (48) hours, present an amended notice of appeal which provides a claim for leave to appeal and that the orders of 4 October 2018 be set aside.

That the appeal referred to in the above order be consolidated with appeal EA 121 of 2018 and that the hearing of those appeals be expedited.

That subject to approval of the Chief Justice that appeal EA 121 of 2018 and the appeal against the orders of 4 October 2018 may be determined by a single judge, these appeals are to be listed for hearing before Justice Ryan at 10.00 am on 24 October 2018.

That in relation to EA 121 of 2018 and the appeal against the orders of 4 October, the applicant shall file and serve any application to adduce further evidence in the appeal by 18 October 2018.

That the Appeal Registrar conduct an urgent procedural hearing in relation to EA 121 of 2018 and the appeal against the orders of 4 October 2018.

That the costs in 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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