JARRAH & FADEL - [2013] FamCAFC 192

FAMILY COURT OF AUSTRALIA

JARRAH & FADEL

[2013] FamCAFC 192

FAMILY LAW – APPLICATION IN AN APPEAL – Application to adjourn an appeal pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW) pending the hearing of an appeal to the Legal Aid Review Committee – The respondent and the Independent Children’s Lawyer do not strongly oppose the adjournment – The appellant has not filed appeal books and the appeal is deemed abandoned pursuant to the Family Law Rules 2004 – It is in the interests of justice that any application to reinstate the appeal is not listed before the determination of the substantive proceedings – Application allowed.

FAMILY LAW – APPLICATION IN AN APPEAL – Application to adjourn an application to appeal orders out of time pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW) pending the hearing of an appeal to the Legal Aid Review Committee – The respondent and the Independent Children’s Lawyer do not strongly oppose the adjournment – Hearing the application to appeal out of time after the legal aid appeal is determined will cause inordinate delay in first instance proceedings which involve the welfare of young children and there is no apparent merit in the proposed appeal – It is in the interests of justice that the application to appeal out of time is adjourned and is not listed before the determination of the substantive proceedings – Application allowed.

Rowell & Keogh (2011) 45 Fam LR 157

Family Law Rules 2004, r 22.21
Legal Aid Commission Act 1979 (NSW)

APPELLANT:

Mr Jarrah

RESPONDENT:

Ms Fadel

INDEPENDENT CHILDREN’S LAWYER:

K L Haga & Associates

FILE NUMBER:

PAC

2015

2011

APPEAL NUMBER:	EA	93	of	2013
EA	94	of	2013

DATE DELIVERED:

11 November 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Ainslie-Wallace and Murphy JJ

HEARING DATE:

11 November 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 June 2013

LOWER COURT MNC:

[2013] FamCA 531

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Schroeder

SOLICITOR FOR THE RESPONDENT:

Mahony Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Haga

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

K L Haga & Associates

Orders

In the event the appellant makes an application to reinstate the appeal (EA 93 of 2013), currently deemed abandoned, such application shall not be listed until after the hearing and determination of the substantive proceedings.
The application in an appeal (EA 94 of 2013) be adjourned, not to be relisted until after the hearing and determination of the substantive proceedings and, subject to any directions to the contrary by the Senior Judge of the Appeal Division, to be listed with any appeal against the orders made resolving the substantive proceedings.

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…

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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Details

AGLC: JARRAH & FADEL [2013] FamCAFC 192
Case: [2013] FamCAFC 192
Decision Date

CaseChat Overview and Summary

The Full Court of the Family Court of Australia was presented with two appeals filed by Mr Jarrah, the appellant, against decisions made by Justice Stevenson in the Family Court of Australia. The first appeal (EA 93 of 2013) challenges Justice Stevenson's decision to not disqualify herself from the substantive proceedings. The second appeal (EA 94 of 2013) seeks an extension of time within which to appeal other orders made by Justice Stevenson on 25 March 2013 and 3 April 2013. The substantive proceedings involve disputes over parenting arrangements for the parties' young children. The Full Court was asked to consider an application by the appellant to adjourn the appeals pending the determination of his application for legal aid, which was to be decided by the Legal Aid Review Committee on 5 December 2013.

The Full Court noted that the appellant had failed to comply with directions to file appeal books, resulting in the abandonment of the first appeal (EA 93 of 2013) under the Family Law Rules 2004. Despite this, the appellant had the right to apply to reinstate the appeal once he obtained legal aid. The court also considered the merits of the second appeal (EA 94 of 2013) and found that there was no apparent merit in the proposed appeal, particularly in relation to the discharge of the Independent Children's Lawyer and the orders concerning the child's injury.

The Full Court concluded that it was in the interests of justice for the substantive proceedings to be determined before considering the appeals. The court made orders that any application to reinstate the abandoned appeal (EA 93 of 2013) would not be listed before the determination of the substantive proceedings. Additionally, the application in an appeal (EA 94 of 2013) was adjourned and would not be relisted until after the hearing and determination of the substantive proceedings. The appeal would then be listed with any appeal against the orders resolving the substantive proceedings, subject to any directions by the Senior Judge of the Appeal Division.

Orders