The husband’s application for an adjournment of the appeal made by facsimile on 11 February 2014 be refused.
That the husband’s application for leave to appeal the orders of the Honourable Justice Johnston made on 31 January 2014 filed on 7 February 2014 be dismissed and we make no order as to costs.
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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY
Appeal Number: EA 23 of 2014 File Number: PAC 2015 of 2011
Mr Jarrah
Appellant
And
Ms Fadel
Respondent
EX TEMPORE REASONS FOR JUDGMENT
AINSLIE-WALLACE J
Mr Jarrah, to whom I shall refer as the husband, seeks leave to appeal against orders made by Justice Johnston on 31 January 2014 refusing to vacate the dates set for the final hearing of the parenting proceedings between the parties. The hearing is listed to commence before Justice Johnston on 17 February 2014. The wife, Ms Fadel, and the Independent Children's Lawyer appeared to oppose the husband’s application for leave to appeal and to seek to maintain his Honour’s orders.
The husband’s appeal from his Honour’s orders was filed on 7 February 2014 and, given the imminence of the hearing date, the appeal was listed before a Full Court, today, 12 February 2014.
At about 10.23pm on 11 February 2014 the Appeal Registry received by fax the following documents from the husband which will comprise Exhibit “A” on the appeal. The first is a handwritten letter from the husband. It says:
… I ask for adjourn please note. I not able to attend the hearing date
12-2-2014 or another as I suffering from stress---cervical neck disc problems. I attached
1 - letter from my psychologist.
2 - letter from my solicitor
Best Regards
[Mr Jarrah]
11-2-14
The letter attaches two documents.
The first is a letter from Ms C, a Clinical Psychologist. The letter is dated 8 December 2013. It is addressed “To whom it may concern”…
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.
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AGLC
Jarrah & Fadel [2014] FamCAFC 14
Case
[2014] FamCAFC 14
Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, Mr Jarrah, the appellant, filed an appeal against orders made by Justice Johnston on 31 January 2014, which refused to vacate the dates set for the final hearing of the parenting proceedings between him and Ms Fadel, the respondent. The appeal was listed before a Full Court on 12 February 2014, and the wife and the Independent Children's Lawyer appeared to oppose the husband's application for leave to appeal. The primary legal issues the court had to decide were whether the husband's application for an adjournment of the appeal should be granted and whether leave to appeal the lower court's orders should be granted.
The Full Court found that the application for adjournment should be refused, as the litigation had been ongoing since mid-2011, and the matter had not been determined despite being listed for hearing on four occasions. The court cited the case of Aon Risk Services Australia Ltd v ANU [2009] 239 CLR 175, which emphasised the negative effects of delay and costs on parties to the proceedings and other litigants. The Full Court also considered the best interests of the three young children involved, who had not seen their father for nearly three years. In light of these factors, the court determined that it was in the interests of justice to proceed with the hearing as scheduled.
Furthermore, the Full Court found that the husband's application for leave to appeal should be dismissed. The court noted that the appeal document and the transcript of the proceedings before the trial judge were sufficient to enable the court to understand the matters sought to be agitated on appeal and to determine whether the husband could establish the necessary grounds for a grant of leave to appeal, such as an error of principle and/or a substantial injustice to one of the parties. The court found that the husband had failed to demonstrate that there had been an error of principle or a substantial injustice done to him and that the appeal was largely a re-agitation of matters previously determined adversely to him. As a result, the court refused to grant leave to appeal the lower court's orders.
In conclusion, the Full Court of the Family Court of Australia dismissed the husband's application for leave to appeal the orders of Justice Johnston made on 31 January 2014 and refused his application for an adjournment of the appeal. The court made no order as to costs. The final orders were that the husband's application for an adjournment of the appeal be refused, and the husband's application for leave to appeal the orders of Justice Johnston be dismissed.