JABBAR & GADE
[2020] FamCAFC 49
•9 March 2020
FAMILY COURT OF AUSTRALIA
| JABBAR & GADE | [2020] FamCAFC 49 |
| FAMILY LAW – APPEAL – LEAVE – Application for leave pursuant to s 102QE of the Family Law Act 1975 (Cth) – Application for leave to file an Application in an Appeal – Applicant granted leave to file the Application in an Appeal insofar as it relates to the transcript and digital appeal book – Applicant refused leave to file the Application in an Appeal insofar as it relates to the production of the respondent’s mobile phone. |
| Family Law Act 1975 (Cth) ss 102QB, 102QE |
| Jabbar & Gade (No. 11) [2018] FCCA 1056 Jabbar & Gade (No. 22) [2019] FCCA 2186 Jabbar & Gade [2019] FamCAFC 14 Jabbar & Gade [2019] HCASL 344 |
| APPLICANT: | Ms Jabbar |
| RESPONDENT: | Mr Gade |
| FILE NUMBER: | NCC | 2265 | of | 2015 |
| FIRST APPEAL NUMBER: | EA | 82 | of | 2019 |
| SECOND APPEAL NUMBER: | EA | 98 | of | 2019 |
| DATE DELIVERED: | 9 March 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 4 March 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 August 2019 5 September 2019 |
| LOWER COURT MNC: | [2019] FCCA 2186 [2019] FCCA 2500 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | NLS Law |
Orders made on 4 March 2020
The applicant be granted leave to file her Application in an Appeal dated 4 February 2020 insofar as the application seeks orders to dispense with transcript and to file the digital appeal book without the List of Exhibits.
The application for leave to file the Application in an Appeal dated 4 February 2020 insofar as it relates to paragraph 3 of Part D of the application is refused.
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 82 of 2019 & EA 98 of 2019
File Number: NCC 2265 of 2015
| Ms Jabbar |
Applicant
And
| Mr Gade |
Respondent
REASONS FOR JUDGMENT
On 4 March 2020, I made orders dealing with an application for leave pursuant to s 102QE of the Family Law Act 1975 (Cth) (“the Act’) to file an Application in an Appeal. These are my reasons for the orders that were made.
Pursuant to leave granted by Ainslie-Wallace J on 29 October 2019, Ms Jabbar (“the applicant”) has appealed against orders made by a judge of the Federal Circuit Court of Australia on 16 August 2019 (EA 82 of 2019) and 5 September 2019 (EA 98 of 2019).
The orders made by the primary judge on 16 August 2019 were:
(1)The [applicant’s] application filed on 7 May 2019 is dismissed.
(2)The [applicant’s] amended application in a case filed on 5 August 2019 as to the orders sought at 4 and 5 is dismissed.
(3)Pursuant to Section 102QB (2) (b) of the Family Law Act [the applicant] is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) in any Court having jurisdiction under that Act.
(4)All outstanding applications filed by the [applicant] are dismissed.
(5)The [respondent’s] application for costs is adjourned to 4.15pm on 4 September 2019 for further consideration.
The orders made on 5 September 2019 were in relation to costs.
On 4 February 2020, the Appeals Registry received an Application in an Appeal from the applicant seeking the following orders:
(1)To give exemption to include transcripts of the proceedings dated 6 August 2019 and 4 September 2019.
(2)To give exemption to include “list of exhibits” dated 6 August 2020.
(3)To provide me [respondent’s] mobile phone associated with alleged text messages dated 25-07-2015 and video dated 09-03-2013 for forensic analysis report.
The effect of Order (3) made by the primary judge on 16 August 2019 is that leave is required to file the proposed Application in an Appeal.
Orders (1) and (2) as sought by the applicant are procedural in nature and relevant to the prosecution of the appeals. It is appropriate that leave is granted to institute proceedings to seek them.
Order (3) seeks the production of the respondent’s mobile phone.
It is apparent from the primary judge’s reasons for judgment (Jabbar & Gade (No. 22) [2019] FCCA 2186]) that the purpose of the mother seeking to have the respondent’s mobile phone produced is to have it forensically tested so as to demonstrate that the text messages and videos referred to in the order sought were fake.
This was an issue that was extensively canvassed in the proceedings before the primary judge in 2017 with judgment being delivered on 11 May 2018 (Jabbar & Gade (No. 11) [2018] FCCA 1056). The applicant appealed that decision of the primary judge and the appeal was dismissed by the Full Court of the Family Court of Australia on 8 February 2019 (Jabbar & Gade [2019] FamCAFC 14). The applicant then filed an application for special leave to appeal to the High Court of Australia, which was dismissed on 17 October 2019 (Jabbar & Gade [2019] HCASL 344).
Notwithstanding the determination of the issue, the applicant attempted to re-canvass it before the primary judge who declined to permit it.
The production of the mobile phone to the Court or any forensic testing is not relevant to the decision of the primary judge, which was that there had been no change in the circumstances that justified reconsideration of the parenting orders. The repeated attempts of the applicant to raise the issue of the respondent’s mobile phone were part of the reasons given for the primary judge’s order made under s 102QB of the Act. Again, the production of the mobile phone itself, is not relevant to the correctness of that decision.
The purpose of s 102QB and its related sections is to prevent the conduct of vexatious proceedings. The continual requests made by the applicant for the production of the respondent’s mobile phone when the issues to which it is relevant have been finally determined is clearly vexatious.
Leave is refused in relation to Order (3) sought by the applicant in the Application in an Appeal.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 9 March 2020.
Associate:
Date: 9 March 2020
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