Jabbar & Gade (No 2)
[2019] FamCAFC 187
•29 October 2019
FAMILY COURT OF AUSTRALIA
| JABBAR & GADE (NO. 2) | [2019] FamCAFC 187 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks expedition of her appeals against parenting and costs orders and an order declaring her a vexatious litigant pursuant to s.102QB – Where there is no merit in the appeal – Where there is no relevant circumstance which would cause the case to be given priority over other cases to their possible detriment – Application dismissed. |
| Family Law Act 1975 (Cth) s 94(2D) Family Law Rules 2004 (Cth) r 12.10A |
| Moxon & Moxon [2010] FamCAFC 67 |
| APPELLANT: | Ms Jabbar |
| RESPONDENT: | Mr Gade |
| FILE NUMBER: | NCC | 2265 | of | 2015 |
| APPEAL NUMBERS: | EA EA | 82 98 | of of | 2019 2019 |
| DATE DELIVERED: | 29 October 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 22 October 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 August 2019 |
| LOWER COURT MNC: | [2019] FCCA 2186 |
REPRESENTATION
| THE APPELLANT: | Ms Jabbar in person |
| COUNSEL FOR THE RESPONDENT: | Michael Weightman |
| SOLICITOR FOR THE RESPONDENT: | NLS Law |
Orders
Leave to be given nunc pro tunc to file Appeal Nos EA 82 and EA 98 of 2019.
The applications for expedition in Appeals EA 82 and EA 98 of 2019 are dismissed.
Appeals EA 82 and EA 98 of 2019 be consolidated.
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. 2) 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 and EA 98 of 2019
File Number: NCC 2265 of 2015
| Ms Jabbar |
Appellant
and
| Mr Gade |
Respondent
REASONS FOR JUDGMENT
On 16 August 2019 a judge of the Federal Circuit Court dismissed an application for final parenting orders sought by Ms Jabbar (“the mother”). The effect of Her Honour’s order was that the children of the mother and Mr Gade (“the father”), X who was born in 2006 and Y who was born in 2012 will continue to live with the father and will spend no time with or communicate with the mother.
Her Honour made an order pursuant to section 102QB of the Family Law Act 1975 (Cth) (“the Act”) which prohibited the mother from instituting proceedings under the Act in any court having jurisdiction under the Act. That order was made on the father’s application.
Further on 5 September 2019, the primary judge ordered the mother to pay the father’s costs of the parenting proceedings fixed in the sum of $7,794.50.
By Notice of Appeal EA 82 of 2019, filed on 10 September 2019 the mother appeals the orders made on 16 August and by Notice of Appeal EA 98 of 2019, filed on 1 October 2019 the costs order of 5 September 2019.
The order made on 16 August 2019, by its terms prohibited the filing of the appeals, however I propose to grant leave to file them nunc pro tunc.
The mother seeks expedition of both appeals.
At the outset of the hearing of the applications for expedition, counsel for the father had not received copies of the documents related to Appeal EA 98 of 2019 or the application for expedition in relation to it however on being given the documents, counsel for the father was prepared to meet the applications.
I note too that in both applications, the mother seeks the Full Court make orders which are unrelated to the issue of expedition and appear, at least at first blush to raise issues already heard and determined, but, in any event, for the purposes of the applications for expedition, none of those ancillary orders will be considered.
Relevant background
In order to give this application context, it is necessary to refer to some brief background facts. These are largely taken from the documents filed in support of this application and the reasons of the primary judge for making the subject orders.
The parties have been involved in ongoing parenting proceedings since August 2015. A final hearing took place during August and September 2017 and March 2018 with final orders being made on 11 May 2018. The parenting orders provided for the father to have sole parental responsibility for the children and for the children to live with him and spend no time with and have no communication with the mother.
The mother appealed the parenting orders. The appeal was heard by the Full Court on 8 February 2019 and dismissed. In March 2019 the mother made an application to the High Court for special leave to appeal the decision of the Full Court. That application for special leave was refused. On 7 May 2019 the mother filed an Initiating Application seeking the following orders on both a final and interim basis:
1.Mother (Ms Jabbar) and Father (Mr Gade) have equal parenting rights for “Children” i.e., X DOB …2006 and Y DOB …2012.
2.That children will stay with mother (Ms Jabbar) every week from Sunday evening 4PM to Saturday morning 9AM.
This application was heard by Judge Terry and dismissed on 16 August 2019 and it is this order which is now the subject of Appeal EA 82 of 2019.
Expedition
Section 94(2D) of the Act provides for the expedition of appeals although no criteria or considerations for making that order are provided within the section. Recourse is often had to r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) which addresses applications for expedition of hearings before a judge (see Moxon & Moxon [2010] FamCAFC 67).
The considerations are:
·Whether the applicant has acted reasonably and without delay;
·Whether the application has been brought expeditiously;
·Whether there is any prejudice to the respondent to the application; and
·Whether there is a relevant circumstance which would cause the case to be given priority over other cases to its possible detriment.
While the applications were made without delay, the real issue here is whether there is a relevant circumstance which would cause this matter to be given priority over other matters listed for appeal and which may cause other similar matters to be displaced in the hearing list.
Whilst counsel for the father said that his client did not object to the expedition of both appeals he conceded that in his opinion there was no relevant circumstance which would cause these appeals to be given priority over other appeals.
There is nothing in the mother’s lengthy affidavit which persuades me that this is a case in which the appeal should be given priority of hearing displacing other similar matters which are waiting to be heard and thus both applications will be dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
29 October 2019.
Associate:
Date: 29 October 2019
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