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 | of | 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 93 & 94 of 2013
File Number: PAC 2015 of 2011
| Mr Jarrah |
Appellant
And
| Ms Fadel |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
THACKRAY J
Listed before this Full Court today was the Notice of Appeal filed on 15 July 2013 (EA 93/2013), by the appellant father, Mr Jarrah, seeking to challenge an order made by the Honourable Justice Stevenson, made on 19 June 2013, refusing to disqualify herself from the substantive proceedings in this matter.
Also listed before this Full Court today was an application in an appeal filed on 15 July 2013, (EA 94/2013), in which, effectively the appellant father seeks an extension of time within which to file an appeal against other orders made by the Honourable Justice Stevenson on 25 March 2013 and 3 April 2013. That application was accompanied by a draft notice of appeal.
This morning, the Appeal Registry received from the appellant father an application seeking to vacate the hearing today, pending him obtaining legal representation. The application was supported by a two line affidavit together with a letter from the Legal Aid Review Committee, dated 30 October 2013.
It is the application to vacate the hearing with which the Court is presently concerned.
Adjournment application
The basis upon which the application for an adjournment is made is s 57 of the Legal Aid Commission Act 1979 (NSW), which provides that:
57 Adjournment of certain proceedings
Where it appears to a court or tribunal, on any information before it:
(a) that a party to any proceedings before the court or tribunal:
(i)has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or
(ii)intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,
(b)that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and
(c) that there are no special circumstances that prevent it from doing so,
the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.
The application of s 57 of the Legal Aid Commission Act 1979 (NSW) in proceedings in this court has been the subject of decision in other matters, one of the more recent being in Rowell & Keogh (2011) 45 Fam LR 157. In that case, the Full Court accepted that s 57 applied in this court and discussed the circumstances in which the provision would be applied.
It is unnecessary, in my view, for this court to seek to interpret s 57 because the respondent, who is represented by counsel, and the Independent Children’s Lawyer, appearing herself, do not seek to suggest that the appellant’s appeal to the Legal Aid Review Committee is anything other than “bona fide”. They have not sought to argue that it is “frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings” and nor do they seek to put before the Court any “special circumstances” that might prevent this court from adjourning the application.
Given the state of the authorities, the position adopted by counsel for the respondent and the Independent Children’s Lawyer was entirely appropriate. Accordingly, the basis for adjourning the application has been made out and the question then becomes the date to which the proceedings would be adjourned and the terms and conditions on which the proceedings should be adjourned.
In order to determine that question, it is necessary, in my view, to have regard to the relevant chronology of events, both in the proceedings below and following the institution of the appeal and the application for an extension of time within which to appeal.
In order to provide context for that chronology, the options that appear to me to be available to the Full Court are these:
·First, that the proceedings be adjourned to another Full Court on a date after the Legal Aid Review Committee makes its determination on 5 December 2013. As I have indicated in the course of hearing the submissions today, advice from the Senior Judge of the Appeal Division indicates that if such an adjournment were to be granted, it could not be given a date earlier than the February 2014 sittings of this Full Court.
·The other option that has been canvassed today is to adjourn the hearing of the appeal and the application for an extension of time in relation to the other proposed appeal to a date after the determination of the substantive proceedings pending in the Parramatta registry of the Family Court of Australia. The reasons why that perhaps unusual outcome may be appropriate will be a matter to which I will return later after providing a chronology of what appear to me to be the relevant events.
Chronology
The substantive proceedings in the Family Court of Australia have been before the court for some time – probably more than a couple of years.
The information available to this Full Court about what is involved in those proceedings is extremely limited as the appellant has failed to comply with a direction in relation to the filing of appeal books. But we know enough to be aware that the appellant and the respondent are in dispute in relation to appropriate parenting arrangements for their relatively young children. We know, also, that the appellant has not seen his children for some 31 months. Although the appellant says he wishes to see them, at one stage of the submissions he said that when these proceedings are complete he intends to leave Australia.
We know also, because it is material to one element of the application before the Court today, that one of the children of the appellant and the respondent, the child J, fractured his leg in May 2011 in circumstances which would appear to be controversial.
We know, also, that prior to his retirement, the Honourable Justice Collier had the conduct of these proceedings and determined a number of the issues that arose in the course of the interlocutory stage of the litigation. We know that on 14 May 2012, his Honour dismissed an application by the appellant for the discharge of the Independent Children’s Lawyer. We know nothing of the circumstances in which that application was made other than that the appellant was aggrieved by the conduct of the Independent Children’s Lawyer. Most importantly, for the purposes of today’s proceedings, we have not been informed of any appeal or application to extend time in which to appeal against that decision of Collier J dismissing the appellant’s application for discharge of the Independent Children’s Lawyer.
On 5 February 2013, Collier J entertained applications made by the appellant arising out of concerns the appellant had in relation to matters preparatory to the trial in the proceedings. One of the appellant’s main concerns is his allegation that certain documents produced pursuant to subpoena have gone missing from the registry and he alleges they have been stolen. And it would seem, from his submissions, that he considers the Independent Children’s Lawyer might be complicit in that. The merit, if any, in that proposition would be a matter determined on another occasion but Collier J on 5 February, dealt with the appellant’s concerns, although, as it turned out, not to his satisfaction. His Honour made an order on that occasion for the appellant to have leave to issue ten subpoenas in order to permit the allegedly stolen documents to be gathered together again, placed in the custody of the court and hence to be available during the balance of the litigation.
His Honour also dealt with the appellant’s concern in relation to the child J’s injury and, in this context, it can be noted that it appears that the appellant believes that the respondent, or persons associated with her, were responsible for the injury sustained by the child J in May 2011. Collier J made an order effectively permitting the appellant to obtain an expert report relating to the child J’s injuries to deal with the appellant’s concern. But, in doing so, his Honour expressly provided that the report was to be prepared on the basis of existing medical records and documents, and on the basis that neither the child J nor any of the other children would be interviewed for the purposes of determining the way in which the injury was sustained. That injury had occurred almost two years previously.
Those orders having been made and no appeal having been filed in relation to them, on 13 March 2013, the appellant filed an application, a matter of a week or two prior to the trial which was listed to commence before the Honourable Stevenson J for four days on 25 March 2013. The appellant, in his application filed on that day, sought to vacate the trial. He sought orders attempting, again, to deal with the issue relating to the missing or stolen subpoenaed documents. He sought an order relating to the expert report concerning the fracture to the child J’s leg and he, again, sought the discharge of the Independent Children’s Lawyer.
On 25 March 2013, the matter came before Stevenson J for what should have been the first day of the trial. We have the benefit of a transcript of the proceedings on that day where the appellant was representing himself, the respondent was represented by counsel and counsel appeared also for the Independent Children’s Lawyer. The appellant was successful on that occasion in having the trial adjourned and the matter, after some discussion, was listed for trial on 12 August 2013. One order that Stevenson J made that day dealt with an application of the appellant relating to his concerns that the respondent suffers from some mental illness. Her Honour formally gave leave to the appellant to file an application for the appointment of an expert or a psychologist to assess the respondent’s mental condition. Apart from doing that, her Honour reserved her decision.
On 3 April 2013, Stevenson J delivered her judgment and made further orders dealing with the balance of the appellant’s application filed 13 March 2013. Her Honour’s reasons are available to use and speak for themselves. For present purposes, it is sufficient to say that in dealing with a request by the appellant for an investigation to be carried out of the appellant’s concerns about the subpoenaed documents being stolen, her Honour said neither she nor the Attorney-General had the power to investigate and that it was her role to determine matters on the basis of evidence properly brought before her. The reference to the Attorney-General arises out of the fact that the appellant had sought that the matter be referred to the Attorney-General for him to make some kind of inquiry into the complaint in relation to the missing documents. Her Honour said that she could do no more than Collier J had done on 5 February 2013; that is the making of the order giving the appellant permission to issue the subpoenas again for production of the missing documents.
In dealing with the issue concerning the child J’s injury, her Honour considered evidence that the appellant had provided about the way in which the injury was said to be sustained, but indicated that the evidence fell far short of establishing that the child J had been assaulted whilst in the care of the respondent. Her Honour said she was not prepared to amend the order Collier J had made allowing for the preparation of an expert report only on the basis that there be no interviewing of the child J or the other children.
In dealing with the appellant’s repeated application for the discharge of the Independent Children’s Lawyer, Stevenson J found there was no additional evidence since the hearing before Collier J that would justify such a course of action, and accordingly, was not prepared to discharge the Independent Children’s Lawyer.
In explanation of the order that she had earlier made in relation to the appointment of a psychologist to assess the respondent’s mental condition, Stevenson J explained that she had done so on the basis it was up to the appellant to bring a competent application in that regard, identifying not only the expert who would be engaged to undertake this task, but also the means by which the expert’s fee would be paid.
Her Honour dismissed the balance of the appellant’s application of 13 March 2013.
No appeal was lodged within time in relation to either the orders that were made on 3 April 2013 or the order made on 25 March 2013.
On 21 May 2013, the appellant filed an application for Stevenson J to be disqualified and he supported that by an affidavit affirmed much earlier that month.
The proceedings came before her Honour on 3 June 2013. We have not been provided with a transcript of what may have been said on that occasion, but reference to her Honour’s reasons will indicate that she recorded that the appellant had been asked at the hearing if he had anything further to say in support of the disqualification application apart from he had said in his affidavit. The appellant indicated that he did not. Having heard the argument her Honour reserved her decision.
On 19 June 2013, Stevenson J published her reasons and dismissed the application for her to be disqualified. The formal order extracted on that occasion would suggest that her Honour dismissed an application filed on 25 March 2013, whereas it is obvious that her Honour was intending to dismiss the application that had been filed on 21 May 2013.
In the reasons that her Honour gave for her decision she referred to well-established authorities dealing with the circumstances in which a judge should disqualify him or herself. Her Honour found that those circumstances did not exist and described the appellant’s case as a series of inaccurate propositions, suspicions and speculations. To allay one of the appellant’s concerns that had been raised in his affidavit her Honour assured him and others that there had been no ex parte communications between her and anybody involved in the proceedings.
This brings me back to the appeal that was then lodged by the appellant on 15 July 2013. Her Honour’s decision having been given on 19 June 2013, that appeal was within time. The appellant does not have the benefit of legal representation and English is not his first language, as would be apparent from considering the parts of the document that would pass for grounds of appeal, but essentially the appellant says he wants to argue in the appeal that her Honour (a) breached the law, (b) made a wrong decision and (c) was totally biased.
As I have noted, on the same day the appeal was filed the appellant also filed his application for extension of time in which to appeal the earlier orders. In his affidavit in support of his application for an extension of time within which to appeal, the appellant asserted that he had only recently been informed by a member of the court staff that he had a right of appeal and that would therefore pass as his explanation for the delay. No further information was provided or assertions made to support the merits of the proposed appeal.
The appeal and the application for extension of time within which to appeal came before Registrar Halbert on 31 July 2013 for directions. The registrar importantly directed that the application for extension of time should be listed with the appeal regarding the disqualification issue. She indicated that she would expedite the hearing of the appeal, hopefully with a view to the matter being determined in the first week of September 2013.
Registrar Halbert also directed the appellant provide his appeal books by 16 August 2013 and his summary of argument by 19 August 2013 and otherwise provided for similar documents to be provided by the other parties after the appellant complied with his orders. The appellant would obviously struggle in complying with those orders, given he does not have legal representation and given English is not his first language. Therefore, he properly applied on 13 August 2013 for an extension of time pending him obtaining legal representation and noting that he had, in the meantime, sought legal aid. It was in this application that the appellant first drew attention formally to the provisions of s 57 of the Legal Aid Commission Act 1979 (NSW) to which I referred earlier.
On 5 September 2013, Registrar Halbert informed the appellant by letter that he was to keep all involved in the proceedings advised of the outcome of his legal aid application and gave him notice that the appeal now was likely to be heard in the week commencing 11 November 2013; that is this week. The registrar’s letter refers to the fact that there had been consent from all of the other parties to the proceedings to the vacation of the hearing of the appeal, so it did not proceed in September. Importantly, it is also noted in the letter that there had been consent to the vacation of the proceedings which had been re-listed at first instance, and noting also agreement to an extension of time to file the appeal books.
It is most important here to observe that the matter had indeed been listed before a judge, other than Stevenson J, in the Parramatta Registry, which may, of course, call into question the necessity for the appeal having proceeded at all at that stage given that the matter was no longer before Stevenson J and appeared to have been assigned to somebody else. I will come back to that issue later.
On 2 October 2013, the Regional Appeal Registrar emailed the parties informing them that the matter would be listed for hearing today. Importantly, the letter noted again that the first instance proceedings had been affected by the delay in the matter, and advising the appellant that if he did, indeed, propose to pursue his appeal he should file the appeal books and his summary of argument by 20 October 2013 and that if he did not comply with those directions then the matter would be listed for hearing before the Full Court on 11 November 2013 for consideration of dismissal of the appeal.
The Regional Appeal Registrar realised that 20 October deadline was a Sunday, and accordingly, on 17 October advised all of the parties by email that the time would be, in fact, extended to 21 October 2013. I should note that in providing these deadlines to the appellant it is apparent from reading the correspondence from the Regional Appeal Registrar that the timetable was laid down in accordance with advice previously provided by the appellant concerning the time in which it was likely he would have a determination of his application for legal aid.
In any event, on 18 October, shortly prior to the extended deadline expiring, the appellant sent a further email to the Regional Appeal Registrar advising that he had lodged an appeal on 22 August 2013 against an earlier decision refusing his application for legal aid and advising that the appeal process would take a further four to six weeks.
On 24 October 2013, the Regional Appeal Registrar wrote to the parties noting that the appeal books and summary of argument from the appellant had not been provided in accordance with the directions and drew attention to the provisions of the rule relating to the possibility of an appeal being dismissed for want of prosecution and again advising the matter was listed before this Full Court today to consider whether the appeal should be dismissed for want of prosecution.
The appellant then, it would seem, approached the Registry and was given the advice which has led to him now making his application for an adjournment of the appeal pending the outcome of his application for legal aid which he says will be determined on 5 December 2013.
The submissions of the appellant
At the commencement of the hearing today, as I have noted, we were informed that there was no real opposition to the application for an adjournment. We then heard submissions from the appellant which were designed to test what merit there might be in relation to the matters that he wishes to bring before the Court on the application for an extension of time within which to appeal, and also to assist the bench to understand what prejudice there might be to the appellant in the event that the adjournment was to a date other than a date prior to the hearing of the substantive matter.
Importantly, towards the end of his submissions, on at least two occasions, the appellant indicated that once the substantive proceedings are completed, it is his intention to depart this country, which would seem to have some very obvious effect in relation to him having any time with his children in the event that that were to be ordered by the court. It also transpired in the course of hearing his submissions that his objective in obtaining an expert report relating to the injury sustained by the child J would appear to be not so much to be of assistance in relation to these proceedings, but for some collateral purpose in order to determine who caused the injury and presumably for some action to be taken in that regard.
The adjournment of the appeal
The first issue to determine is what is to happen to the appeal. As I have mentioned in the course of giving the chronology of relevant events, the direction for the appeal books to be provided within the extended time allowed by the Regional Appeal Registrar has not been complied with. In my view, this brings into play r 22.21 of the Family Law Rules 2004, which provides that:
If an appellant fails to file the appeal books by the date ordered, the appeal is taken to be abandoned.
The appellant’s position is very clear. He accepts that the appeal books have not been provided and gives an explanation, and perhaps a good explanation as to why that is so. Counsel for the mother and Independent Children’s Lawyer both concur in the view that this appeal which the appellant seeks to have adjourned is deemed abandoned.
It is important to appreciate that the appellant’s complaint about the disqualification of Stevenson J should not be allowed to fall away on a technicality relating to the abandonment of an appeal, and that it is open to him to make an application for the appeal to be reinstated at an appropriate time.
Presumably, that application could not be made until such time as the appellant has obtained legal aid, given that the appellant has explained he is unable to comply with the earlier order in relation to preparation of the books without assistance. In the meantime, however, I consider there is no appeal to be adjourned pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW) because the appeal presently stands abandoned.
As I say, that says nothing at all about the appellant’s right to seek to have the appeal reinstated. The question would arise, however, as to when that application for reinstatement could be made. And if made, when it should be listed for hearing. I will come back to that after I deal with the next important issue that requires determination today.
The adjournment of the application in an appeal
That second issue concerns the extension of time application. There is no doubt this application is properly on foot and is not affected by the abandonment question to which I have just referred.
In the ordinary scheme of things, an appeal against an interlocutory set of orders such as those sought to be challenged by this application, would come back, after an adjournment under s 57, before another Full Court and before the final resolution of the substantive proceedings.
But in my mind, there is a real issue as to whether that is the appropriate course of action here. As I have earlier explained, if this matter were to follow the normal course, it would come back before the Full Court in February of next year at the earliest. There would then need to be a determination in relation to the extension of time. If it were successful, there would then need to be a hearing of the appeal on its merits. And if matters were to follow what might be called the ordinary course, in the meantime the substantive proceedings would continue to be delayed inordinately, as they have been to date.
In circumstances where these proceedings involve the welfare of young children, where the appellant is presently not having any time with the children, and in circumstances where the respondent has indicated her desire to have the matter dealt with as quickly as possible, the question arises whether there are any circumstances that might make it appropriate to depart from the usual course by having the application determined after the substantive proceedings. That brings me to the merits of the complaints that the appellant seeks to agitate on his application for an extension of time.
The first and perhaps most significant issue relates to his desire to have the Independent Children’s Lawyer discharged. The most important matter on which comment ought to be made in that regard is that this was an issue determined by Collier J as long ago as 14 May 2012, and no appeal has been made in relation to that decision. Stevenson J has recorded that she received no additional relevant information to have her depart from an order already made by another judge who had had the conduct of the matter.
And speaking for myself, and on a very preliminary basis, because we of course have not heard full argument, I am far from convinced that there is any merit at all in the appellant’s application for the discharge of the Independent Children’s Lawyer. I am, however, more than prepared to accept that I could be wrong, and certainly acknowledge that I do not have full information in relation to it. But if we were, today, to adjourn the appellant’s application for an extension of time until after the determination of the substantive matter, in my view the appellant’s position would not be prejudiced.
And that would be for these reasons.
First, in the event that the appellant does obtain legal aid, he may be in a position to make an application for an extension of time within which to appeal against the earlier decision of Collier J. In the event further information has come into the appellant’s possession after 14 May 2012, when Collier J dismissed the application for the discharge of the Independent Children’s Lawyer, then it would be open to the appellant to seek to have that evidence adduced in support of his application.
Secondly, without commenting on the merits of the process, it is at least a possibility that in the event the appellant is in receipt of some further information relating to the conduct of the Independent Children’s Lawyer, that an independent, fresh application could be made for the discharge of the Independent Children’s Lawyer. I certainly do not encourage that process, but simply note that it may be a possibility.
More importantly perhaps, however, is the fact that the appellant, in seeking to have the Independent Children’s Lawyer discharged, misunderstands the role of the Independent Children’s Lawyer. That role is to seek to adduce evidence before the court, and to seek to make submissions to the court, in the best interest of the children.
In the event the appellant considers there is some evidence that the Independent Children’s Lawyer should be producing to the court, then it is open to the appellant to adduce that evidence himself.
If any application is made by the Independent Children’s Lawyer, it is open to the appellant to appear before the court and to oppose the proposition being advanced by the Independent Children’s Lawyer.
And in the event that the Independent Children’s Lawyer makes some submission that the appellant considers is not in the interest of the children, or contrary to the evidence, then it is available to the appellant to seek to put a different position to the trial judge.
And ultimately, of course, if it became apparent that the Independent Children’s Lawyer had not adequately fulfilled her function or had engaged in some inappropriate conduct, then an application could be made to the trial Judge for her discharge.
There is in my view therefore no apparent merit in the propositions that the appellant wishes to put in relation to the Independent Children’s Lawyer and, in any event, no prejudice to him in the event that this application is postponed until after the substantive matter has been determined.
The next issue I wish to consider relates to the appellant’s concern in relation to the documents that have been stolen, and his desire for there to be an investigation. Speaking again only for myself, I would endorse without reservation everything that Stevenson J said on this topic. The court does not conduct inquiries outside of the courtroom. The job of the judge is to determine the matters that occur within the courtroom and it is for others, notably the police, to take action in the event it is suggested that there has been a breach of the criminal law.
Similarly, in my view, her Honour was quite right to refuse to refer the matter to the Attorney-General for investigation, as again the Attorney-General’s role is of a different nature, and no doubt the Attorney-General would have directed the appellant to the police.
The next issue in relation to which there needs to be some preliminary consideration of the merits concerns the appellant’s complaint about the orders relating to the child J’s fractured leg.
Again speaking for myself, the position that was adopted firstly by Collier J, and then endorsed by Stevenson J, is an entirely appropriate and pragmatic one, namely saying that the appellant can obtain an expert report based upon the existing medical records, but the child or his siblings should not be involved in some kind of investigation as to who may have caused the injury. This is a matter, in my view, to be determined by the trial judge on the basis of evidence to be put before the trial judge. If the trial judge were to be satisfied that there was a need for any further expert evidence that she or he did not have, then it would be open for orders to be made to deal with that need.
Finally, I will deal with the other matter which is of apparent concern to the appellant, namely the order Stevenson J made concerning the appointment of an expert to investigate the appellant’s assertions about the respondent’s mental health. Again, the appellant, I suspect, misunderstands the order that was made. Her Honour has not in any way prevented this enquiry from occurring. She has merely said that if the appellant wishes to pursue that application, then he needs to bring it in proper form. He needs to identify the expert who is to be engaged, and he needs to identify the means by which the expert is to be paid.
Bearing in mind that the substantive proceedings involve the welfare of children, the considerable expense associated with the running of this appeal, the time that has already been set aside for this Full Court to determine the matter today, the time that would need to be available to have the matter dealt with by another Full Court independently of the substantive proceedings on another date, I am not in any way satisfied that it would be appropriate to adjourn this matter for determination prior to the determination of the substantive proceedings.
Proposed orders
I consider it in the interests of justice that the substantive proceedings be allowed now to promptly make their way through the court, and for the issues that the appellant wishes to agitate either be agitated to the extent that they can be before the trial judge, or on appeal after the substantive outcome is known. For all we know, the outcome could be favourable to the appellant, in which case, presumably, his complaints would fall away.
If the outcome is unfavourable to the appellant, then the fact that these proceedings are on foot means that his rights remain in existence and can be pursued at the appropriate time, when the outcome of the proceedings is known. Of course if the proceedings are concluded and the appellant departs the country, then everything presumably will fall to the wayside. And of course any issues regarding the appeal concerning the disqualification issue will fall to the wayside if Stevenson J is not the judge who hears the matter.
For all of those reasons, the orders that I would propose will be as follows:
·First, in the event that the appellant makes an application to reinstate EA 93 of 2013, currently abandoned, that application not be listed until after the trial of the substantive proceedings.
·The application in an appeal in proceedings EA 94 of 2013 be adjourned, not to be relisted until hearing and determination of the substantive proceedings and, subject to any determination by the Senior Judge of the Appeal Division, to be listed for hearing with any appeal against the outcome in the substantive proceedings.
AINSLIE-WALLACE J
I agree with the reasons and comments made by Thackray J and the orders that he proposes, and I do not wish to add anything further.
MURPHY J
I respectfully agree with his Honour the Presiding Judge’s analysis of the issues, and the conclusions reached by his Honour. I specifically agree, respectfully, with his Honour’s significant reservations as to the merits of the appellant’s application. I too am far from convinced as currently advised of any merit. I agree with the orders his Honour proposes.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 11 November 2013.
Associate:
Date: 2 December 2013