Jarrah and Fadel

[2012] FamCA 569

FAMILY COURT OF AUSTRALIA

JARRAH & FADEL [2012] FamCA 569

FAMILY LAW  – PROCEDURAL – Application by self-represented litigant to discharge and reappoint Independent Children’s Lawyer – Allegation of actual or perceived bias on the part of the Independent Children’s Lawyer – Actual bias not substantiated - Application dismissed.

Family Law Act 1975 (Cth)

Lloyd and Lloyd and Child Representative (2000) FLC 93-045
T and L (2000) FLC 93-056

APPLICANT: Mr Jarrah

RESPONDENT: Ms Fadel

INDEPENDENT CHILDREN’S LAWYER: Karen Haga

FILE NUMBER: PAC 2015 of 2011

DATE DELIVERED: 14 May 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 14 May 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In person

Mr Jarrah

SOLICITOR FOR THE RESPONDENT:

Ms Beach

Mahony  Family Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Spurling

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Haga

Karen Haga & Associates

Orders

1. That the application contained in a case application filed by Mr Jarrah on 19 April 2012 is hereby dismissed.

2. That I stand this matter over for mention before myself at 9.30 am on Thursday 7 June 2012. On that occasion the solicitor or counsel for the Independent Children’s Lawyer, the mother’s legal representative and the father’s legal representative may attend by telephone, provided they each notify my Associate by 12 noon on the day prior of their intention to do so together with their contact telephone number.  If the father does not have a solicitor then the father is to appear in person on that day.

3. That an Arabic Interpreter is to be present on 7 June 2012 for the assistance of the father and shall be arranged by the Court.

4. That I request, in the strongest possible terms, the Legal Aid Review Committee give such expedition and determine as soon as possible, the appeal for the refusal of legal aid by Mr Jarrah.

5. That leave is granted to the Independent Children’s Lawyer to inspect material produced by the Department of Human Services first and within seven (7) days.  Thereafter the mother’s legal representative shall have seven (7) days to inspect that material and thereafter the father, or his legal representative shall have leave to inspect that material. The Independent Children’s Lawyer and the mother’s legal representative shall have the right to black out anything that would reveal the location or contact of the mother.

6. That today’s costs, of both the Independent Children’s Lawyer and the mother, are hereby reserved and are to be dealt with by myself or at the hearing by her Honour Justice Stevenson.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarrah & Fadel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2015 of 2011

Mr Jarrah

Applicant Father

And

Ms Fadel

Respondent Mother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The application before me today is that of the father filed on 19 April 2012, in which he seeks (handwritten) orders, as best I can interpret them (as they are handwritten and include a number of typographical and grammatical errors), for the dismissal of the Independent Children’s Lawyer, Ms Haga.

2. He appears to be asserting that the Independent Children’s Lawyer has co-operated or colluded with criminal people.  He further asserts that the Independent Children’s Lawyer is aware that the mother has assaulted the children, or at least one of the children.  I take that to mean he alleges that she (the Independent Children’s Lawyer) has direct knowledge of the fact that the child/ren have been assaulted by their mother, or that she knows the identity of the persons who are the perpetrators of those assaults.

3. He also speaks of documents that he provided, which he asserts establish that the children are being persecuted with the Independent Children’s Lawyer’s knowledge.  He further asserts that the Independent Children’s Lawyer refuses to do anything about these matters.

4. Furthermore, he alleges that the Independent Children’s Lawyer prevented him from seeing the children for no reason.

5. Dealing very briefly with that last allegation, what is referred to and relied upon is a passage in a document which forms an annexure to the father’s affidavit.  In that document, the Independent Children’s Lawyer indicates that she does not believe the father spending any time with the children, or having contact with them by telephone, would have been appropriate at the time of the writing of the letter on 25 July 2011.

6. The father thus says that he believes that the Independent Children’s Lawyer has refused him the right to see the children.

7. At that time, the father was represented by a solicitor of some standing.  Nothing was done.

8. The Independent Children’s Lawyer expressed a view.  A view with which, if he disagreed, he could have sought to obtain relief from the Court.

9. As to the other matters, I am not quite sure what he asserts, but it seems that what he is saying is that there was a requirement on the Independent Children’s Lawyer to carry out some form of criminal type investigation in relation to injuries sustained by one of the children.

10. There is some argument about subpoena that I do not clearly understand.

11. The fact of the matter is that the father does not like the Independent Children’s Lawyer who has been appointed in this case.

12. Unfortunately, that, of itself, is no reason to disqualify or discharge an Independent Children’s Lawyer.

13. In cases such as Lloyd and Lloyd and Child Representative[1] and T and L[2], consideration was given to the circumstances in which an Independent Children’s Lawyer would be discharged.  The view in Lloyd (supra), expressed with some force, was that just because a party did not agree with the Independent Children’s Lawyer or perceived bias on the part of the Independent Children’s Lawyer, the Court ought to be slow to discharge an Independent Children’s Lawyer without evidence of actual bias or impartiality demonstrated by the Independent Children’s Lawyer.  I am satisfied no such evidence exists in this case. 

    [1] (2000) FLC 93-045

    [2] (2000) FLC 93-056

14. Accordingly, I dismiss the father’s application contained in his Application in a Case filed on 19 April 2012.

15. I reserve the costs of both the Independent Children’s Lawyer and the mother to be dealt with either by myself or at the hearing by her Honour, Stevenson J.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 14 May 2012.

Legal Associate:      

Date:    23 July 2012