Jarrah & Fadel (No 2) - [2015] FamCAFC 161

FAMILY COURT OF AUSTRALIA

JARRAH & FADEL (NO. 2)

[2015] FamCAFC 161

FAMILY LAW – APPEAL – CHILDREN – Where the proceedings at first instance were undefended – Where the father filed no evidence at trial – Where the father sought multiple adjournments prior to the trial – Where the father’s notice of appeal does not contain competent grounds of appeal – Whether the trial judge ought to have granted the father a further adjournment – Where the trial judge was correct to determine the matter in the absence of the father – Appeal dismissed.

FAMILY LAW – APPEAL – Application to adduce further evidence – Where the application on its face has no merit – Where the proposed further evidence was generally inadmissible and could not demonstrate that the judgment under appeal was erroneous – Application dismissed.

FAMILY LAW – APPEAL – Costs – Where the respondent mother and the Independent Children’s Lawyer sought that the father pay their costs of the appeal – Where the appeal was wholly unsuccessful – Where the making of a costs order is warranted – Father to pay the costs of and incidental to the appeal of the mother and of the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 94(2A), 117, Part VII
Family Law Rules 2004 (Cth) r 22.21

Fadel & Jarrah [2013] FamCA 312
Fadel & Jarrah (No. 2) [2013] FamCA 531
Jarrah & Fadel [2012] FamCA 569
Jarrah & Fadel [2013] FamCAFC 192
Jarrah & Fadel [2014] FamCA 47
Jarrah & Fadel [2014] FamCAFC 14

APPELLANT:

Mr Jarrah

RESPONDENT:

Ms Fadel

INDEPENDENT CHILDREN’S LAWYER:

Karen L Haga & Associates

FILE NUMBER:

PAC

2015

2011

APPEAL NUMBERS:	EA	37	of	2014
EA	94	of	2013

DATE DELIVERED:

18 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

29 July 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 February 2014

LOWER COURT MNC:

[2014] FamCA 85

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Eldershaw

SOLICITOR FOR THE RESPONDENT:

Mahony Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Karen L Haga & Associates

Orders

Appeal against the orders of Johnston J made on 21 February 2014 is dismissed.
Applications in an Appeal, EA 94 of 2013 and EA 37 of 2014, are dismissed.
The Father pay the Mother’s costs of and incidental to the appeal, such costs to be agreed or assessed and paid within twenty-eight (28) days of such agreement or assessment.
The Father to pay the Independent Children's Lawyer’s costs of and incidental to the appeal in the sum of $2,200, the costs to be paid within twenty-eight

(28) days of the date of these orders.

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…

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 (No 2)

Details

AGLC: Jarrah & Fadel (No 2) [2015] FamCAFC 161
Case: [2015] FamCAFC 161
Decision Date: 18 August 2015

CaseChat Overview and Summary

The appeal in the case of Jarrah & Fadel (No 2) was heard by the Family Court of Australia. The primary dispute concerned the custody and care of children, with the mother being the primary caregiver and the father seeking changes to the current arrangements. The proceedings at first instance were undefended, and the father failed to present any evidence at the trial, despite multiple adjournments being sought prior to the hearing. The father subsequently filed an appeal against the orders made by Johnston J on 21 February 2014. The issues before the court were whether the trial judge should have granted the father a further adjournment, whether the trial judge was correct in proceeding in the father's absence, and whether the father's notice of appeal contained competent grounds.

The court found that the father's notice of appeal did not contain competent grounds, as it failed to identify any legal or factual errors made by the trial judge. The court also determined that the trial judge was correct in proceeding with the matter in the father's absence, as he had been given multiple opportunities to present his case and had failed to do so. The court further dismissed the father's application to adduce further evidence, as the application was without merit and the proposed evidence was inadmissible and could not demonstrate that the judgment under appeal was erroneous. Consequently, the appeal was dismissed in its entirety.

In addition to dismissing the appeal, the court ordered the father to pay the mother's and the Independent Children's Lawyer's costs of and incidental to the appeal. The costs were to be agreed upon or assessed and paid within 28 days of such agreement or assessment. The Independent Children's Lawyer's costs were specifically set at $2,200, to be paid within 28 days of the date of the orders. The court's decision underscores the importance of adhering to procedural requirements and the consequences of failing to present a case in family law matters.

Orders

Orders of the court

Appeal against the orders of Johnston J made on 21 February 2014 is dismissed.

Applications in an Appeal, EA 94 of 2013 and EA 37 of 2014, are dismissed.

The Father pay the Mother’s costs of and incidental to the appeal, such costs to be agreed or assessed and paid within twenty-eight (28) days of such agreement or assessment.

The Father to pay the Independent Children's Lawyer’s costs of and incidental to the appeal in the sum of $2,200, the costs to be paid within twenty-eight

(28) days of the date of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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