JABBAR & GADE - [2016] FamCAFC 71

FAMILY COURT OF AUSTRALIA

JABBAR & GADE

[2016] FamCAFC 71

FAMILY LAW – APPLICATION IN AN APPEAL – Expedition – Where the mother seeks to expedite an appeal against interim parenting and procedural orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

Family Law Act 1975 (Cth): s 94(2D)(j)

Family Law Rules 2004 (Cth): r 12.10A

APPLICANT:

Ms Jabbar

RESPONDENT:

Mr Gade

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

2265

2015

APPEAL NUMBER:

2016

DATE DELIVERED:

20 April 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

20 April 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT ORDERS MADE:

11 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

FOR THE APPLICANT:

Ms Jabbar in person

FOR THE RESPONDENT:

Mr Gade in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Presker (via telephone link)
Legal Aid NSW Newcastle

By consent

It is ordered:

That the applicant mother have leave to withdraw that part of her appeal (EA 46/2016) which relates to Orders 1 and 2, 4 to 9 inclusive made on 11 March 2016.
The appeal against the orders referred to in Order 1 be dismissed.

It is further ordered:

That the Application in an Appeal filed 1 April 2016 be dismissed.

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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 46 of 2016
File Number: NCC 2265 of 2015

Ms Jabbar

Applicant

And

Mr Gade

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed on 1 April 2016, Ms Jabbar (“the mother”) seeks an expedited hearing of her appeal against various interim procedural orders and the dismissal of a contravention application and an application for interim parenting orders on 11 March 2016. Judge Terry dealt with the applications in the duty list and made the orders under appeal.
At the commencement of the proceedings today, the mother sought and was given leave to withdraw that part of her appeal which related to Orders 1 and 2 and 4 to 9 inclusive of the Orders made on 11 March 2016. On the strength of the application, the appeal having been withdrawn by consent, the appeal insofar as it related to those orders will be dismissed. The effect of that is that the appeal now concerns Order 3 of 11 March 2016, that being the dismissal of the contravention application and the application for interim orders.
I proceed on the basis that both Mr Gade (“the father”) and the Independent Children’s Lawyer (“ICL”) are content for the appeal to be expedited, but as was made…

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 & GADE

Details

AGLC: JABBAR & GADE [2016] FamCAFC 71
Case: [2016] FamCAFC 71
Decision Date: 20 April 2016

CaseChat Overview and Summary

The mother, Ms Jabbar, sought to expedite her appeal against interim parenting and procedural orders made by the primary judge in the Federal Circuit Court of Australia. The appeal related to the dismissal of a contravention application and an application for interim parenting orders made on 11 March 2016. The court was required to determine whether the appeal should be given priority over other cases awaiting a hearing. The primary issues included whether the nature of the appeal justified expedition and whether the appeal, if expedited, would cause detriment to other cases. Ms Jabbar argued that the children were at risk of harm in the father's care and that the appeal should be expedited to address these concerns. However, the court found that the appeal did not meet the criteria for priority over other cases, particularly those involving children at risk of harm.

The court noted that the mother had acted promptly in filing her appeal and application for expedition. However, the court also considered that a full hearing of the appeal would allow for a conclusive determination of the issues, which outweighed the potential benefits of expedition. Furthermore, the court found that the father did not suffer any prejudice from the delay in hearing the appeal. Most importantly, the court concluded that the nature of the appeal did not justify priority over other cases, as there were already safeguards in place to protect the children and another application concerning the children's treatment by the paternal family was scheduled for hearing on 5 May 2016. The court dismissed the application for expedition, finding that the appeal did not meet the criteria for priority.

In conclusion, the Family Court of Australia dismissed the application for expedition of Ms Jabbar's appeal against the interim parenting and procedural orders made by the Federal Circuit Court. The court found that while the mother had acted promptly, the appeal did not justify priority over other cases, particularly those involving children at risk of harm. The court also noted that there were safeguards in place to protect the children and that another application concerning the children's treatment was scheduled for hearing.

Orders