JARRAH & FADEL - [2015] FamCAFC 47

FAMILY COURT OF AUSTRALIA

JARRAH & FADEL

[2015] FamCAFC 47

FAMILY LAW – APPEAL – Application in an appeal for an extension of time in which to file an appeal against divorce order – Where the divorce order has taken effect – Application dismissed.

Family Law Act 1975 (Cth) ss 93, 94
Evidence Act 1995 (Cth)

Family Law Rules 2004 (Cth) rr 22.03,

Gallo v Dawson (1990) 93 ALR 479
Price & Underwood (Divorce Appeal) [2009] FamCAFC 127

APPLICANT:

Mr Jarrah

RESPONDENT:

Ms Fadel

FILE NUMBER:

PAC

2015

2011

APPEAL NUMBER:

2015

DATE DELIVERED:

27 March 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

24 March 2015

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

3 November 2014

LOWER COURT MNC:

[2014] FCCA 2313

REPRESENTATION

THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms L Beach as amicus curiae

Orders made 24 March 2015

The Application in an Appeal filed by the father on 26 February 2015 is dismissed.

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).

THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 23 of 2015
File Number: PAC 2015 of 2011

Mr Jarrah

Applicant

and

Ms Fadel

Respondent

REASONS FOR JUDGMENT

By an application in an appeal filed 26 February 2015 Mr Jarrah (“the husband”) seeks an extension of time in which to file an appeal against the divorce order of Judge Dunkley made on 3 November 2014.
Ms Fadel (“the wife”) opposes the husband’s application.

Background

Proceedings between the husband and the wife have been on foot for many years, having been commenced in May 2011 when the wife sought parenting orders in relation to the parties’ three children. The children, E (born

2002), J (born 2003) and F (born 2006) have not seen the father for some years.
The husband is no stranger to the appeal process. He has filed appeals against a number of decisions of judges of the Family Court in relation to parenting orders. Three appeals filed by him are yet to be finalised. It appears that the husband has almost always appeared for himself both at first instance and on appeals. He has also, it seems, prepared his own Notices of Appeal.
On 20 February 2014 the wife filed an application for a divorce order in relation to the parties marriage which she asserted was solemnised in Egypt on 12 January 2002 in a religious ceremony that was then civilly registered with the Egyptian authorities on 16 January 2002.
On 27 June 2014 the husband filed a response opposing the making of a divorce order.
The proceedings were heard by Judge Dunkley on 7 October 2014 and his Honour made the order for divorce of the parties on 3 November 2014. The order was expressed to take…

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 [2015] FamCAFC 47
Case: [2015] FamCAFC 47
Decision Date: 27 March 2015

CaseChat Overview and Summary

The applicant, Mr Jarrah, sought an extension of time to file an appeal against a divorce order made by Judge Dunkley on 3 November 2014, which had taken effect on 4 December 2014. The respondent, Ms Fadel, opposed the application. The case involved longstanding proceedings between the parties, which began in May 2011 when the wife sought parenting orders regarding their three children. The husband, who had a history of filing appeals, filed a response opposing the divorce application on 27 June 2014. The proceedings were heard on 7 October 2014, and the divorce order was made on 3 November 2014. The husband filed the application for an extension of time on 26 February 2015, citing his return from overseas on 30 January 2015 as the reason for the delay.

The legal issues before the court were whether it was appropriate to extend the time for lodging an appeal and whether the divorce order could be appealed after it had taken effect. The court applied the principles from Gallo v Dawson (1990) 93 ALR 479, which stated that the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. However, section 93 of the Family Law Act 1975 (Cth) ("the Act") provided that an appeal does not lie from a divorce order after the order has taken effect. This was confirmed in Price & Underwood (Divorce Appeal) [2009] FamCAFC 127, where it was concluded that once a divorce order has taken effect, it cannot be the subject of an appeal. Therefore, any challenge the husband would make does not lie in an appeal brought pursuant to section 94 of the Act.

The court found that the husband's explanation for the delay in bringing the appeal was wholly unsatisfactory and that the rules which apply to others should also apply to him. Furthermore, the wife was entitled to the certainty and legal consequences of the divorce order taking effect. As the divorce order was a judgment in rem, it affected the status of the parties, and Ms Fadel was entitled to marry again if she wished. There was significant prejudice to her if the extension of time was granted. Therefore, the court dismissed the husband's application and found that even without the provision of section 93 of the Act, it would not have granted an extension of time in which to bring an appeal.

As the wife was represented on the appeal, the solicitor appeared amicus curiae and thus no costs were sought. The court certified that the preceding twenty-one (21) paragraphs were a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 27 March 2015.

Orders