JARRAH & FADEL

[2014] FamCA 47

FAMILY COURT OF AUSTRALIA

JARRAH & FADEL [2014] FamCA 47

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Refusal to vacate trial date – Where several final hearing dates have previously been vacated – Where the father objects to the Independent Child Lawyer continuing in the proceedings – Where the father claims a further expert report is required to assess the parties’ son – Where the father has had more than adequate opportunity to have an expert prepare such a report – Where an adjournment would result in procedural unfairness pursuant to the principles in Aon Risk Services – Where the trial Judge found justice requires exercise of the Court’s discretion to dismiss the adjournment application.

Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

APPLICANT: Mr Jarrah

RESPONDENT: Ms Fadel

INDEPENDENT CHILDREN’S LAWYER: Karen L Haga & Associates

FILE NUMBER: PAC 2015 of 2011

DATE DELIVERED: 31 January 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Johnston J

HEARING DATE: 31 January 2014

REPRESENTATION

FOR THE APPLICANT: Mr Jarrah in person

SOLICITOR FOR THE RESPONDENT: Ms Beach, solicitor of Mahony Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Haga, solicitor of Karen L Haga & Associates

Orders

1. That the mother serve a copy of her affidavit sworn on 23 January 2014 by having it delivered to the father’s address at … D Street, Suburb C, New South Wales, 2… as soon as possible.

1. That the Court notes that the Court has informed Ms Beach and the father that if there is an affidavit to the effect that a hard copy of the mother’s affidavit has been delivered to the mail box at the father’s address the Court shall accept that as good service.

1. That the father’s application to adjourn the hearing listed to commence on 17 February 2014 is dismissed.

1. That the father file a list of affidavits to be relied on by him at the trial and serve such list on the other parties not later than 12 February 2014.

1. That the father is given leave to file any further affidavits not later than 12 February 2014. 

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 PARRAMATTAPARRAMATTA

FILE NUMBER: PAC 2015 of 2011

Mr Jarrah

Applicant

And

Ms Fadel

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Jarrah, to whom for convenience I shall refer as the father, for orders to vacate the five days final hearing which has been listed to commence on 17 February 2014.  The application for adjournment is opposed by both the mother, Ms Fadel, and the Independent Children’s Lawyer.  These substantive proceedings between the parents, have been travelling in the Court over a very long time.  There have now been several final hearings listed for the Court to determine the final parenting arrangements for the parties’ three children. 

2. The substantive proceedings about the children were first listed for final hearing for a number of days commencing on 10 July 2012.  The matter did not go ahead on that occasion.  It was listed again for a final hearing on 25 March 2013, that being for four days before Stevenson J.  Very shortly before the commencement date on that occasion, the father filed an application seeking to vacate the trial.  Orders were made to this effect and the trial was adjourned to commence on 12 August 2013.  Again, it did not commence on 12 August 2013.  It was stood over to 30 September 2013 for hearing over a number of days before Hannam J.  In circumstances where the father had lodged various appeals, the matter was again vacated in respect of those dates, and the matter was listed for trial for five days before me to commence on 17 February this year.  So this is the fifth occasion on which the matter has been listed for final hearing.

3. The father’s application to vacate the hearing is on a number of bases.  Firstly, the father says that he is not ready for the matter to be heard on 17 February.  He has a number of complaints.  He says it is not ready firstly because he has an objection to the Independent Child Lawyer continuing in the proceedings.  He says that quite some time ago he saw a number of subpoenaed documents in Ms Haga’s bag.  The father has a long-standing complaint about what he says is that documents which were produced on subpoena disappeared.  As I understand his submissions today, in some way he seems to regard Ms Haga as having been implicated in that matter. 

4. The father first raised this a long time ago before Collier J, and Collier J’s approach to this aspect of the matter was that the father could have leave to re-issue the subpoenas so that the documents could be reproduced.

5. I understand from my reading of the judgment of the Full Court in the appeal in respect of this matter which was delivered on 11 November 2013, that when the matter came before Stevenson J, the father made a similar complaint to her Honour.  Stevenson J said in respect of that matter, that she could do no more than Collier J had done earlier that year, which I think was February, that is, to make an order giving the father permission to issue the subpoenas again for production of the missing documents. 

6. Upon my questioning of the father about this aspect of the subpoenas, the father indicated that he has not re-issued the subpoenas.  Amongst a number of parts of his explanation in respect of that, he said that he has no money.  In my view, that matter has been within the father’s control now for a very long time, going right back to February last year when he raised the matter with his Honour. 

7. The father also says that he has had an ongoing concern about an injury to the parties’ son J.  He has said that he wanted to get his own expert evidence about this matter.  Again, this was a matter which was raised, if not in February last year, at some point before Collier J.  Collier J made orders the effect of which was to enable the father to be able to choose an expert to whom he could refer various relevant medical documents, and ask the doctor to express an opinion about the circumstances in which it would be likely, or perhaps even possible, that J could have sustained the relevant injury.

8. The father has indicated that he engaged a Dr P, but he was not happy with Dr P.  Then he engaged a Dr G.  The relevant material was provided to Dr G, and Dr G produced a report.  But at the end of the day, Dr G indicated that he was really unable to form a final opinion about what might have occurred.  And in those circumstances, the father says today to the Court that he would like to get another doctor engaged for that purpose.  In my view, in respect of that issue, the father has had more than adequate opportunity to have such an expert prepare such a report.

9. The other matter submitted by the father as part of his reasons for not being ready to proceed is his assertion that the mother has a mental health problem.  He would like to obtain another expert report about the mother in respect of this matter. 

10. My understanding is that Dr K, psychiatrist, has been appointed as single expert in these proceedings and that Dr K has prepared a report which is currently available to each of the parties.  One would expect that this report will be tendered to the Court during the hearing.  Whatever opinions Dr K has expressed in his report can be the subject of cross-examination by the father.

11. It is almost trite to say that courts have an important duty to hear and determine cases with as little delay as possible.  In the case of Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 the High Court of Australia made observations about the importance of courts getting on with the business of hearing cases, and the important duty which courts have in considering adjournment applications. One of the many things which the High Court said in that case was that there is what they described as an irreparable element of unfair prejudice in unnecessarily delaying proceedings. The unfair prejudice does not just extend to other parties in the proceedings, but it also extends to other litigants in the court. This is because when courts vacate hearing dates, not only is there a loss of that court time, but other court dates have to be allocated for hearing the case, and those of course would be dates which could have been available to other litigants in the system.

12. So there can be a multiplicity of prejudices to persons, not only the immediate parties in proceedings when courts vacate hearing dates.  Hearing dates are scarce; courts are a publicly funded resource.  There can also be inefficiencies when courts vacate hearing dates because the vacated dates cannot always be re-allocated.  And it is important for the public to be able to maintain confidence in the judicial system.  If people have the perception that courts simply keep on adjourning cases rather than determining them, then that is a matter which can affect public confidence in the system.

13. As I have said, in these proceedings, the parties have been involved in litigation over a very long time.  The children’s mother has been endeavouring now for years to have opportunity to come to the Court to ventilate all the issues which are relevant to the best interests of these children.  Directions were made a long time ago for the parties to file affidavits.  The mother has filed her material but the father has not, although he has filed a number of affidavits in these proceedings generally. 

14. In my view, when one weighs up all the relevant matters, and particularly bears in mind the number of occasions that this matter has been adjourned on the application of the father, justice to the parties and to the children requires, in my view, exercising this Court’s discretion in favour of dismissing the adjournment application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 31 January 2014.

Associate:     

Date:              10 February 2014