Jabbar and Gade (No. 4) - [2018] FamCAFC 210

FAMILY COURT OF AUSTRALIA

JABBAR & GADE (NO. 4) [2018] FamCAFC 210

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Two appeals – Appeal against interlocutory orders that the wife vacate a property of the parties after non-compliance with collateral orders that she pay outgoings – Appeal against the dismissal of stay application of the order to vacate – Where the applicant has a history of non-compliance with orders to pay the property’s outgoings – No challenge to the primary judge’s findings of fact – Where the grounds fail to raise sufficient doubt to warrant reconsideration of the matter – Leave to appeal on the basis of the grounds of appeal refused.

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where, if the further evidence had been before the primary judge, there would have been a different result – Application to adduce further evidence allowed in part – Leave to appeal in both appeals on the basis of the further evidence allowed in part – Appeals allowed in part – Re-exercise – Orders set aside and further orders made in relation to appellants occupation of the property.

FAMILY LAW – COSTS – Applicant to pay portion of Respondents costs.

Family Law Act 1975 (Cth) s 93A(2)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

APPLICANT: Ms Jabbar

RESPONDENT: Mr Gade

FILE NUMBER: NCC 2265 of 2015

APPEAL NUMBERS: EA
EA 121
128 of
of 2018
2018

DATE DELIVERED: 5 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 24 October 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 4 September 2018
4 October 2018

LOWER COURT MNC: [2018] FCCA 2492
[2018] FCCA 2903
REPRESENTATION

THE APPLICANT:
In person

COUNSEL FOR THE RESPONDENT: Mr Weightman

SOLICITOR FOR THE RESPONDENT: NLS Law

Orders
(1)That the applicant have leave to adduce further evidence in applications for leave to appeal (EA 121 of 2018 and EA 128 of 2018), being Annexures A and B to the affidavit of Ms Jabbar, filed 18 October 2018.
(2)Other than as provided for in Order 1, the application to adduce further evidence in the appeals filed 18 October 2018 be dismissed.
(3)The applicant be granted leave to appeal Orders 1 and 2 dated 4 September 2018 and Order 1 of 4 October 2018.
(4)Other than as provided in Order 3, the application for leave to appeal the remaining orders issued on those dates be dismissed.
(5)Appeal EA 121 of 2018 be allowed in part.
(6)Appeal EA 128 of 2018 be allowed in part.
(7)Orders 1 and 2 of 4 September 2018 be set aside.
(8)Order 1 of 4 October 2018 be set aside.
(9)Pending further order, or the determination of appeal EA 71 of 2018 and EA 91 of 2018 whichever first occurs, the following orders apply:
(a)No later than 7 November 2018 the applicant shall deposit the sum of $12,000.00…

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. 4)

Details

AGLC: Jabbar and Gade (No. 4) [2018] FamCAFC 210
Case: [2018] FamCAFC 210
Decision Date: 5 November 2018

CaseChat Overview and Summary

The case involves an appeal from interlocutory orders made in family law proceedings between Jabbar and Gade. The wife, Jabbar, appealed against orders that she vacate the family property due to non-compliance with prior collateral orders requiring her to pay outgoings. She also sought to appeal the dismissal of a stay application of the vacate order and applied to adduce further evidence. The primary judge's findings of fact were not challenged, and the grounds of appeal did not raise sufficient doubt to warrant reconsideration.

The court examined the legal issues, including whether leave to appeal should be granted and whether the application to adduce further evidence should be allowed. The court found that the grounds of appeal did not provide a sufficient basis for leave to appeal, but the application to adduce further evidence was allowed in part. The appeals were allowed in part, leading to the setting aside of certain orders and the introduction of new orders regarding the deposit of funds to cover property outgoings.

The court ordered that Jabbar deposit specified sums of money with the respondent's solicitors to cover outstanding and future outgoings. These funds are to be held on trust and applied to the mortgage, council rates, water rates, and other outgoings. In the event the fund is exhausted, Jabbar must make further payments upon notice from the respondent, but no more frequently than every three months. Jabbar is also ordered to pay part of the respondent's costs of the appeal. The form of the order is subject to entry in the Court's records.

Orders

Orders of the court

(1) That the applicant have leave to adduce further evidence in applications for leave to appeal (EA 121 of 2018 and EA 128 of 2018), being Annexures A and B to the affidavit of Ms Jabbar, filed 18 October 2018.

(2) Other than as provided for in Order 1, the application to adduce further evidence in the appeals filed 18 October 2018 be dismissed.

(3) The applicant be granted leave to appeal Orders 1 and 2 dated 4 September 2018 and Order 1 of 4 October 2018.

(4) Other than as provided in Order 3, the application for leave to appeal the remaining orders issued on those dates be dismissed.

(5) Appeal EA 121 of 2018 be allowed in part.

(6) Appeal EA 128 of 2018 be allowed in part.

(7) Orders 1 and 2 of 4 September 2018 be set aside.

(8) Order 1 of 4 October 2018 be set aside.

(9) Pending further order, or the determination of appeal EA 71 of 2018 and EA 91 of 2018 whichever first occurs, the following orders apply:

(a) No later than 7 November 2018 the applicant shall deposit the sum of $12,000.00 with the solicitor for the respondent (NLS Law Pty Limited, trading as NLS Law – Law Practice Trust Account) being account: …

(b) No later than 14 November 2018 the applicant shall deposit an additional $4,000.00 to the respondent’s solicitors referred to in Order 9(a) above.

(c) The respondent’s solicitor shall hold the monies referred to in Orders 9(a) and 9(b) above on trust for the applicant and the respondent and shall apply those funds to discharge arrears on Westpac mortgage account: …, outstanding council rates and water rates and other outgoings payable by the applicant pursuant to Order 9(b) of 11 May 2018 in relation to Property A, in such order and priority as determined by the respondent and thereafter in satisfaction of the applicant’s continuing obligation to pay outgoings as per Order 9(b) of 11 May 2018.

(d) In the event that the fund established in Orders 9(a) and 9(b) is exhausted, the respondent shall give the applicant written notice of that fact, following which within ten (10) days of the date of notice being given, the applicant shall pay an additional $6,000.00 to the solicitor for the respondent, upon the same terms and conditions as apply to the payments made pursuant to Orders 9(a), (b) and (c) above.

(e) Thereafter, at the expiration of three (3) months from the date of the payment made in Order 9(d) above, the applicant may be called upon by the respondent to make similar payments upon the provision of notice as required by Order 9(d) above, but no more frequently than every three (3) months.

(10) The applicant pay the respondent’s costs of and incidental to these appeals in the amount of $4,000.00 which sum is payable at the same time as the respondent pays the applicant the adjusting amount referred to in Order 8 of 11 May 2018 and, to this extent, in the event that the sum due pursuant to this order has not been paid when the adjusting amount is paid, the amount payable by the applicant may be deducted from the adjusting amount.

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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THE APPLICANT:	In person
COUNSEL FOR THE RESPONDENT:	Mr Weightman