Jarrah & Fadel - [2014] FamCAFC 14

FAMILY COURT OF AUSTRALIA

JARRAH & FADEL

[2014] FamCAFC 14

FAMILY LAW – APPEAL – application for adjournment - application for leave to appeal from procedural orders.

Family Law Act 1975 (Cth)

Aon Risk Services Australia Ltd v ANU [2009] 239 CLR 175

APPELLANT:

Mr Jarrah

RESPONDENT:

Ms Fadel

INDEPENDENT CHILDREN’S LAWYER:

Karen Haga

FILE NUMBER:

PAC

2015

2011

APPEAL NUMBER:

2014

DATE DELIVERED:

12 February 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Murphy & Aldridge JJ

HEARING DATE:

12 February 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

31 January 2014

LOWER COURT MNC:

[2014] FamCA 47

REPRESENTATION

THE APPELLANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Ms Beach

SOLICITOR FOR THE RESPONDENT:

Mahony Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gersbach

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

K L Haga & Associates

Orders

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” and says:
Mr [Jarrah] has been attending regular counselling to assist him in dealing with issues related to his family law case. More recently I am observing that he is struggling emotionally and I am recommending that he take some time out from dealing with the case. He has requested that I advise him in writing of this recommendation. I am of the opinion that a 6 months break from all legal matters related to his case will assist him in his recovery.
The second document sent to the court is a letter from the husband’s Lawyers and is dated 11 February 2014. The letter is addressed to the Registrar of the Family Court and says:
We advise that we acted for Mr [Jarrah] in an apprehended violence hearing on 10 February 2014 at [the] Local Court, the matter was completed at about 4.15pm with Mr [Jarrah] undergoing lengthy cross examination.
The magistrate decided against Mr [Jarrah] and Mr [Jarrah] was visibly distressed.
Mr [Jarrah] has shown us a certificate from [Ms C] clinical psychologist dated 8/12/13 recommending that he take time out from his family proceedings to aid his recovery.
Both the Independent Children’s Lawyer and the solicitor for the wife opposes Mr Jarrah’s application to adjourn the appeal. I observe that Mr Jarrah’s letter does not say what has occurred between the filing of his notice of appeal in this matter and last night that prevents him from attending today.
The husband’s application for an adjournment of this appeal in my view should not be granted. This litigation was commenced in mid-2011 and despite being listed for hearing on four occasions, the matter has not been determined. The husband has brought multiple applications seeking the same orders, despite their being rejected by trial judges.
In Aon Risk Services Australia Ltd v ANU [2009] 239 CLR 175 the majority of the high court said at [217]:
…delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants….It would impact on other litigants seeking a resolution of their cases.
Of course, superimposed on their Honour’s decision are the mandatory requirements of section 69ZN(7) which states in part “that proceedings are to be conducted without undue delay…”.
It should not be overlooked that the parties have three, quite young children who have not seen the father for nearly three years. The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.
For these reasons together with the history of the litigation, I am of the view that the application for adjournment should be refused.

Murphy J

I agree that the application for adjournment should be refused.
While this application for leave to appeal relates to interlocutory orders made by the judge below the impact of an adjournment would see the imminent parenting proceedings listed for trial before that judge being delayed. As her Honour pointed out a predominant consideration of the application for adjournment is the best interests of three young children. Given the unfortunate history of this litigation there can be no doubt in my mind that those best interests are met by the litigation about them being brought to an end as soon as can be permitted. I otherwise agree with her Honour’s reasons.

ALDRIDGE J

I agree with the reasons of the other two members of the court and the orders proposed by the presiding judge.

AINSLIE-WALLACE J

As to the disposition of the application for leave to appeal, the basis for the husband’s application before Johnston J rested on matters previously raised by him before other trial judges. The appeal document filed is extensive and consists of 28 paragraphs. The document is a combination of appeal grounds and submissions in support of them. Also before the Court is the transcript of the proceedings before the trial judge in which the husband made his application for vacation of the hearing dates on the bases to which I have already referred. His appeal document and the transcript are, in my view adequate to enable this Court to understand the matters sought to be agitated on appeal if leave to appeal is granted. They are also sufficient to enable the court to determine whether the husband can establish the matters necessary for a grant of leave to appeal – namely that there has been an error of principle and/or a substantial injustice to one of the parties. I am of the view that this Court can consider the Honour’s application for leave to appeal on the material before it. I am of the view that there is nothing the husband could usefully add in any oral submission.
Before dealing with the substance of the matter, it is important to reflect on the history of this litigation.
Proceedings between the parties started in May 2011 when the wife sought parenting orders in relation to the parties’ children. That application has not been determined. The trial of the application is listed for hearing before Justice Johnston on 17 February 2014. It has been listed for hearing on four previous occasions; on each occasion the hearing dates have been vacated. On at least three of those occasions, it has been on the husband’s request. The appeal is against Justice Johnston’s refusal to vacate the hearing dates.
In April 2012 the husband filed an application seeking an order that a solicitor acting for the Independent Children’s Lawyer, be removed. He asserted amongst other things, that the solicitor removed documents from the documents produced to the court under subpoena and put them in her briefcase, effectively depriving him of access to them. That application was heard and dismissed by Justice Collier on 14 May 2012.
The final hearing of the parenting proceedings was set down for 25 March 2013 (earlier dates in July 2012 having been vacated).
On 5 March 2013 Justice Collier determined a number of issues that were raised by the husband. One of the husband’s main concerns was the missing documents and his concerns that the Independent Children’s Lawyer had some role in them being removed from the files. Justice Collier did not deal with the substance of the husband’s allegations both as to the fact of documents being missing or his allegation that the Independent Children’s Lawyer had removed them but, instead, ordered that the husband have leave to re-issue the subpoenas and that the documents, when produced, be held by the court for safe keeping.
His Honour also considered the husband’s concern relating to his child J’s broken leg. In May 2011 J broke his leg. The husband alleges that J was the victim of a violent assault while in his mother’s care and the fractured leg resulted from it. Justice Collier made an order which permitted the husband to seek an expert opinion as to the mechanism of the child’s fracture but ordered that the opinion be by reference to subpoenaed notes and records and not involve an interview with J.
The husband did not appeal these orders.
The trial was listed to commence before Justice Stevenson on 25 March 2013.
On 13 March 2013 the husband filed an application seeking to vacate the hearing dates before Justice Stevenson; seeking orders in relation to the missing documents, to discharge the Independent Children’s Lawyer from continuing to participate in the trial and seeking further orders in relation to the provision of an expert report in relation to J’s broken leg, particularly it seems, wanting J to be interviewed by the doctor who was to prepare the report.
On 25 March 2013, on what would have been the first day of the hearing before Justice Stevenson, the husband appeared for himself, the wife was represented by counsel and counsel appeared for the Independent Children’s Lawyer. Her Honour granted the husband’s application to vacate the hearing dates and it was them relisted for trial on 12 August 2013.
On 25 March 2013, the husband asserted to Justice Stevenson that the wife has a mental illness. Her Honour gave the husband leave to file an application for an order appointing an expert to assess the wife’s mental health.
On 3 April 2013 Justice Stevenson made orders and gave her reasons for the decisions of 25 March 2013. In relation to the husband’s claim that she refer the question of the missing documents to the Attorney General for investigation, leading to criminal prosecutions, her Honour said that it is not the role or function of this court to investigate anything of that nature and told the husband that the court dealt with the evidence that was before it. Her Honour referred to Justice Collier’s grant of leave to the husband to re-issue the subpoenas and said she could do no more than his Honour had done on that point.
Justice Stevenson declined to allow the husband to take J to be interviewed by a doctor and said that the evidence produced by the husband to her on that issue fell short of establishing that J had been assaulted while in the care of his mother.
Her Honour refused to order the Independent Children’s Lawyer be discharged and found that nothing put to her would justify that course. Her Honour explained to the husband that, if he wished to pursue the issue of the wife’s mental health, it was up to him to bring an application identifying the expert to be appointed and indicating how the expert was to be paid.
On 21 May 2013 the husband filed an application seeking that Justice Stevenson disqualify herself. After hearing the husband on the issue, her Honour reserved her decision. On 19 June 2013 her Honour refused the application.
The husband lodged an appeal on 15 July 2013 against her refusal to disqualify herself. At the same time he filed an application for extension of time in which to appeal against Justice Stevenson’s orders of 3 April 2013. Both the appeal and the application for leave to appeal were listed before the Full Court on

11 November 2013.
When the matter came on for hearing, two things were evident. The first was that the husband had failed to lodge his appeal books and summary of argument as ordered and therefore his appeal against the refusal of Justice Stevenson to disqualify herself from hearing the proceedings was considered to have been abandoned. The second matter was that the hearing of the parenting proceedings had been listed for hearing before a judge other than her Honour.
However, the husband sought an adjournment of the appeal and the application for leave because he had been refused legal aid and had lodged an appeal against that refusal which had not then been determined. Neither the wife nor the Independent Children’s Lawyer opposed the adjournment on that basis.
On 11 November 2013, because the appeal against her Honour’s refusal to disqualify herself was abandoned, the Full Court ordered that it be not listed until after the hearing and determination of the substantive parenting proceedings. The application for leave to appeal was also adjourned, not to be listed until the conclusion of the parenting proceedings.
It is important here to note that in making those orders the Full Court took into account that the parenting proceedings involved the welfare of young children whom the husband has not seen for nearly three years and where the wife wished to have the matter dealt with quickly.
Having considered the matters that the husband wished to raise in the appeals, and in light of Justice Stevenson’s reasons, the Full Court was satisfied that it was not appropriate to determine the appeal and application for leave to appeal before the hearing and determination of the parenting proceedings.
The matter was listed for hearing commencing 17 February 2014 before Justice Johnston.
On 24 January 2014 the husband filed an application that the hearing dates be vacated and sought further orders that sought the following which I will read directly from the application:
2. Re-view the Court Order was made in 25 March 2013.
3.I would like a reservation of all subpoenas documents till investigate by your honour or Attorney General.
4. make an order to the registrar to re-produced all subpoenas missed to be file in his Honour chambers
5. made enforced Order to the father to have his son to make an expert report in relation assault of his son and fracture son leg.
6. the father sought to make order to remove the children from their miserable situation to the father, to give the father a chance to prepare the expert report as he brought two witness as an expert report affirmed is his children were assaulted.
7. Discharge the Independent Children’s Lawyer as she working against the children best interested and make more damage to my children. …
8- The father adhering by all what he wrote to the court in 5/2/13 [Affidavit, Notice of child Abuses, Family Violence Risk Of Family Violence)
9- The father needs time to complete documentation to show the court the applicant was misled and the court was perjured.
On 31 January 2014, Justice Johnston conducted a hearing to make procedural orders necessary for the preparation of the matter for hearing to commence on 17 February 2014.
His Honour declined to vacate the hearing dates. Both the wife and the Independent Children’s Lawyer opposed the application. His Honour said that the parenting proceedings were first listed on 10 July 2012 and been vacated four times before the application made to his Honour.
His Honour said that the husband’s application for adjournment was based on a number of things – his objection to the Independent Children’s Lawyer remaining in the matter and his allegations that she had removed documents. His Honour referred to leave given by Justice Collier to allow the husband to re-issue the subpoenas and to Justice Stevenson’s advice to the husband that she could do nothing else than had Justice Collier.
His Honour said that the husband had not re-issued the subpoenas because the husband said he did not have the money.
I note here that it is clear from the husband’s comments to Justice Johnston that he believes that the court should make arrangements for the documents to be produced.
Justice Johnstone said that this issue had been “within Mr [Jarrah’s] control now for a very long time, going right back to February last year when he raised the matter with his Honour.” (a refer to Justice Collier). The husband also based his application for adjournment on his concerns as to how J’s leg was broken. His Honour said:
8. Mr [Jarrah] has indicated that he engaged a Dr [P], but he was not happy with Dr [P]. Then he engaged 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.
His Honour then considered the father’s further basis for an adjournment which was his assertion that the mother has a mental illness. His Honour said that a single expert had been engaged to give evidence in the hearing and his report had been provided to both the husband and wife. He said that that expert could be cross examined by the parties on any asserted issues.
During the hearing before his Honour, the husband referred to the opportunities given him by both Justices Collier and Stevenson to get his own expert report on the wife’s mental health and told Justice Johnston that he did had not done it because he did not want to do it when there was no hearing.
His Honour refused to adjourn the hearing. He referred to the comments of the High Court on the importance of courts not becoming instruments of prejudice to parties by unnecessarily delaying matters and concluded:
14. 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.

The application for leave to appeal

It will be necessary to consider the husband’s notice of appeal in order to determine the question of whether leave to appeal should be granted. As I have said the notice of appeal seems to raise 28 grounds of appeal. It appears that they are not in fact 28 separate grounds but that the husband asserts three broad challenges to his Honour’s order. The husband seems to challenge Justice Johnston’s orders in three ways:
1. His Honour made an error of law
2. The decision was wrong
3. His Honour was biased.

The matters which fall under these headings can be usefully regarded as being submissions on the broader grounds. I do note that some of the numbered paragraphs are not submissions but a repetition of the husband’s allegations against the Independent Children’s Lawyer and I do not propose to consider them as part of the appeal.
It is immediately apparent from reading the balance of the paragraphs and the transcript of the directions hearing before Justice Johnston that the husband sought to reargue matters previously raised by him and rejected by other judges. Equally his appeal seeks to do that same thing. The husband continues to assert that that documents produced under subpoena have been stolen. That although he was given leave to re-issue the subpoenas, he insists that the registrar of the court should replace the allegedly missing documents, and the court must refer the alleged theft to the Attorney General for investigation or conduct the investigation itself.
The husband was told by Justice Stevenson that there is no investigative power in this court. The Full Court in November 2013 endorsed her Honour’s comments in this regard. Nonetheless, the husband continued to insist to Justice Johnston that it be investigated.
Equally, the husband maintains that the trial judge was wrong in not allowing him to have J examined in order to determine how his leg was broken. Justice Collier, in making an order that permitted the husband to obtain a doctor’s report on J’s broken leg, specified that neither the child nor the other children be interviewed for that purpose. Justice Stevenson considered the application that the child be interviewed and said that none of the doctors had said that interviewing the child would assist them in determining how the break occurred. In November 2013 the Full court remarked that Justice Stevenson’s approach to this issue was “entirely appropriate and pragmatic”. The Full Court further said that, if in the hearing, the trial judge thought that further evidence on this point was needed it could be ordered then.
Finally, the appeal document complains that the trial judge was biased because the order requiring the husband to file affidavits in the proceedings by

12 February 2014 did not allow him sufficient time given that English is not his first language. Although from the transcript it seems the husband objected to his Honour listing the matter for hearing because of the matters which the husband said were outstanding, he did not complain that he was not given enough time to comply with the direction.
In my view, the husband has had ample opportunity to obtain the expert reports, both as to J’s leg and his wife’s alleged mental illness and to re-issue subpoenas for documents he says are relevant. He has failed to take the steps offered him, preferring to argue that it is the court’s responsibility and, that the process of adjudicating his parenting dispute with his wife should wait until a time of his choosing.
In my view his Honour’s determination that the interests of justice, which he clearly and plainly recognised are wider than the husband, required the hearing to proceed was correct.
In my view the husband has failed to demonstrate that there has been an error of principle and/or a substantial injustice done to him and leave to appeal should be refused.

MURPHY J

Given the lengthy history of these proceedings and the fact that the issues sought to be agitated are in a very large part a re-agitation of matters previously agitated by the husband determined adversely to him, lack of merit in any ground of appeal and the failure by the applicant husband to identify any error of principle or any potential injustice and the refusal of the husband’s application for adjournment for the reasons earlier identified I agree that:
(a)These proceedings should be heard and determined in the husband’s absence and;
(b)The application for leave to appeal should be dismissed otherwise I agree with the reasons of the presiding judge.

ALDRIDGE J

I also agree.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the

ex-tempore reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy & Aldridge JJ) delivered on 12 February 2014.

Associate:
Date: 13 February 2014