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

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

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.

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.

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

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.

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

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…

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 & FADEL

Details

AGLC: JARRAH & FADEL [2014] FamCA 47
Case: [2014] FamCA 47
Decision Date: 31 January 2014

CaseChat Overview and Summary

In the matter of *Jarrah & Fadel*, heard before Johnston J, the dispute concerned the service of the mother's affidavit and the father's application to adjourn a hearing. The court was required to determine the appropriate method of service for the mother's affidavit and whether the father's application for an adjournment should be granted.

The court reasoned that service of the mother's affidavit could be effected by delivery to the father's residential address. It further indicated that an affidavit confirming delivery to the father's mailbox would be accepted as proof of good service. Regarding the adjournment, the court dismissed the father's application.

Consequently, the court ordered that the mother serve her affidavit sworn on 23 January 2014 by delivering it to the father's address as soon as possible. The court also ordered that the father file and serve a list of affidavits he intended to rely on by 12 February 2014, and he was granted leave to file any further affidavits by the same date.

Orders

Orders of the court

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.

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.

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

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.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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