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

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

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

The application before me today is that of the father filed on 19 April…

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 Jarrah and Fadel

Details

AGLC: Jarrah and Fadel [2012] FamCA 569
Case: [2012] FamCA 569
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Jarrah (the applicant father) sought to discharge Ms Karen Haga as the Independent Children’s Lawyer (ICL) in proceedings against Ms Fadel (the respondent mother). The father alleged that the ICL had co-operated with "criminal people," was aware of alleged assaults on the children by the mother, and had refused him contact with the children.

The court was required to determine whether the allegations made by the father constituted sufficient grounds for the discharge of the ICL. Specifically, the court had to consider if there was evidence of actual bias or impartiality on the part of the ICL, or if the father's dissatisfaction with the ICL's conduct and opinions was a valid reason for her removal.

Collier J dismissed the father's application, finding no evidence of actual bias or impartiality on the part of the ICL. The court applied the principles established in *Lloyd and Lloyd and Child Representative* and *T and L*, which state that courts should be slow to discharge an ICL merely because a party disagrees with their views or perceives bias, without substantiating evidence of actual bias. The court noted that the father's disagreement with the ICL's advice regarding contact, and his assertion that she should have conducted a "criminal type investigation," did not meet the threshold for discharge.

The court ordered that the father's application be dismissed. The matter was adjourned for mention on 7 June 2012, with provisions for parties to attend by telephone. The court also requested expedition from the Legal Aid Review Committee regarding the father's legal aid appeal and granted leave for the ICL and the mother's legal representative to inspect material from the Department of Human Services, with specific rights to redact information. Costs for the ICL and the mother were reserved.

Orders