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 of 2015

APPEAL NUMBER: EA 91 of 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

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

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

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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 AT SYDNEY

Appeal Number: EA 91  of 2018
File Number: NCC 2265  of 2015

Ms Jabbar

Applicant

And

Mr Gade

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in an Appeal filed on 26 September 2018, Ms Jabbar (“the applicant”) seeks orders that her appeal (EA 91 of 2018) be heard and determined without a transcript of the proceedings at first instance which occurred on 2 July 2018; and that the order of the Registrar dated 5 September 2018 directing the applicant to include an electronic copy of the transcript of proceedings dated 2 July 2018, be amended as required.

2. It should recorded at this point that there are three appeals (EA 71 of 2018, EA 91 of 2018 and EA 121 of 2018) on foot, two of which relate to the same factual history between the applicant and Mr Gade (“the respondent”). 

3. The substantive appeal (EA 71 of 2018) is against final parenting and property settlement orders.  The appeal which this application relates (EA 91 of 2018) is against the dismissal of interim parenting and stay order applications following the final orders made on 11 May 2018.

4. In an earlier judgment of 8 August 2018, relating to the applicant’s application for expedition, I ordered that appeal EA 71 of 2018 and appeal EA 91 of 2018 be consolidated (Order 1); that the consolidated appeals be expedited (Order 2); and for a procedural hearing to be conducted in relation to appeal EA 91 of 2018 (Order 3).

5. Procedural orders dated 5 September 2018 directed the applicant to include an electronic copy of the transcript of proceedings of 2 July 2018 in the appeal books (Order 3.11); and for the appeal books to be filed and served by 3 October 2018 (Order 6).

6. The applicant is self-represented and deposes in her affidavit of 26 September 2018 that her precarious financial situation has prohibited her from obtaining copies of the trial transcript in the stay appeal, and, in any case, she does not seek to rely upon the transcript to support her grounds of appeal.  I am informed today in relation to the stay, as is often the case, that the hearing was conducted without oral evidence. 

7. The applicant understands that proceeding without a transcript may make success more difficult in the stay appeal, for example Ground 2, but that is a risk she is willing to run.

8. The Independent Children’s Lawyer (“the ICL”) and solicitor for the respondent do not oppose the applicant being permitted to proceed with the appeal without the transcript of the stay hearing.  I am content to review the Registrar’s decision to this extent and allow the applicant to advance her stay appeal without provision of the transcript at first instance.

9. In the course of discussion this morning I have been referred to a third appeal (EA 121 of 2018) and an attempt by the applicant to file a fourth appeal on 4 October 2018.  The attempt as to the fourth appeal was unsuccessful.  In essence, it would seem this was because the applicant failed to seek leave to appeal and the relief sought was in effect in the nature of a stay, rather than in truth, an appeal.  These latter two appeals concern orders of 4 September 2018 and 4 October 2018 which, in effect, provide for the respondent to take possession of what was the family home at Property A.

10. There are in fact a suite of orders which ultimately have possession of Property A at their heart.  It is agreed this morning that subject to the applicant being able to file an amended notice of appeal in relation to the orders of 4 October 2018, that I would allow the fourth appeal to be filed, consolidate those appeals and seek approval from the Chief Justice for those appeals to be dealt with by a judge sitting alone.  Also, that the consolidated appeals would be expedited and be heard in the week commencing 22 October 2018 by me.  I will make orders to that effect.

11. The ICL has no need to be involved in these two latter appeals and he is excused from further participation in them. 

12. The procedural orders will need to be attended to by the registrar as soon as possible and will obviously require maximum cooperation by the applicant and the respondent given the very tight time frame.  I proceed in this fashion because it is accepted that the question of possession of Property A is an urgent issue and that it cannot properly await further consideration by Full Court at the hearing of appeals EA 71 of 2018 and EA 91 of 2018.  Again, for the record, it is my understanding that those appeals will be listed for hearing on the week commencing 26 November 2018.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 10 October 2018.

Associate: 

Date:  12 October 2018