Jarrah & Fadel (No 2)
[2014] FamCAFC 175
•15 September 2014
FAMILY COURT OF AUSTRALIA
| JARRAH & FADEL (NO. 2) | [2014] FamCAFC 175 |
| FAMILY LAW – APPEAL – Application in an appeal – Review of Appeal Registrar’s decision – Hearing de novo – Where the father seeks the appeal books to be prepared by the Appeal Registrar – Whether the father would suffer exceptional hardship – Where the father would not suffer exceptional hardship – Where the power to prepare appeal books is discretionary – Where in the alternative to the Appeal Registrar preparing the appeal books, the father seeks a six month adjournment of the appeal – Where the application is dismissed. |
| Family Law Act 1975 (Cth) |
Family law Rules 2004 (Cth)
| Aon Risk Services Australia Ltd v ANU [2009] 239 CLR Marin & Salmon [2012] FamCAFC 157 Xuarez & O’Halloran and Anor [2013] Fam CAFC 13 |
| APPELLANT: | Mr Jarrah |
| RESPONDENT: | Ms Fadel |
| INDEPENDENT CHILDREN’S LAWYER: | Karen Haga |
| FILE NUMBER: | PAC | 2015 | of | 2011 |
| APPEAL NUMBER: | EA | 37 | of | 2014 |
| DATE DELIVERED: | 15 September 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 9 September 2014 |
| 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 |
| SOLICITOR FOR THE RESPONDENT: | Mahony Family Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | K L Haga & Associates |
Orders made 9 September 2014
The Application in an Appeal filed by the father on 29 August 2014 is dismissed.
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 APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 37 of 2014
File Number: PAC 2015 of 2011
| Mr Jarrah |
Appellant
and
| Mr Fadel |
Respondent
REASONS FOR JUDGMENT
By an application in an appeal filed 29 August 2014, Mr Jarrah (“the father”) seeks to review a decision of the Appeal Registrar made on 26 August 2014. Although the mother, Ms Fadel, and an Independent Children's Lawyer are parties to the father’s appeal, each was excused from attending on the father’s application for review.
At the conclusion of the hearing I dismissed the father’s application in an appeal and confirmed the procedural orders made by the Appeal Registrar. I indicated that I would deliver reasons for those orders. These are the reasons.
Before turning to the application for review, I propose to set out some brief history of the proceedings to give context to the decision.
Background
Parenting proceedings between the father and the mother have been on foot for many years, having been commenced in May 2011 when the wife sought parenting orders in relation to the parties’ three children. The children, E (born 2002), J (born 2003) and F (born 2006) have not seen the father for some years.
The hearing of the parenting proceedings took place on 21 April 2014 before Johnston J. The father did not attend that hearing.
The parenting proceedings had been listed for hearing on four previous occasions and on each time, the hearing dates were vacated. The vacation of the dates has been, in the majority, at the request of the father.
The father has further brought several appeals. In May 2013, the father made an application that the Stevenson J, before whom the proceedings were listed, disqualify herself. That application was dismissed. The father appealed that decision and, at the same time, sought leave to appeal out of time against orders made by her Honour in April 2013.
The appeal was listed for hearing in November 2013. When the matter came on for hearing the father had not complied with the procedural orders made in relation to the appeal and had not filed appeal books or a summary of argument. The father sought an adjournment of the appeal and the application for leave to appeal out of time.
The Full Court on that occasion determined that it was inappropriate to determine either issue raised or sought to be raised on the appeal before the completion of the parenting issues.
The hearing of the parenting issues was listed before Johnston J on 17 February 2014.
On 24 January 2014 the father made an application that the hearing dates before Johnston J be vacated. That application was heard and dismissed by Johnston J on 31 January 2014. His Honour confirmed the hearing dates set to commence on 17 February 2014.
The father appealed his Honour’s determination by notice of appeal filed on
7 February 2014. Given the imminence of the substantive hearing, the matter was listed before a Full Court on 12 February 2014.
On 11 February 2014, the eve of the Full Court hearing, the father sent a letter to the Appeals Registry seeking an adjournment of the appeal. He claimed that he was suffering from stress and from a neck problem. He attached a letter from a psychologist and one from his solicitor. The psychologist’s letter was dated 8 December 2013 and noted that, in the opinion of the psychologist, the father should have a “6 months break from all legal matters related to his case to assist him in his recovery”. The solicitor noted that he had acted for the father in Apprehended Violence proceedings before the Local Court on
10 February 2014 and said that at the conclusion of the proceedings when the Magistrate found against the father, the father appeared “visibly distressed”.
The adjournment of the appeal was refused. The father’s appeal against Johnston J’s refusal to adjourn the proceedings was determined in the father’s absence and refused.
On 17 February 2014, the date on which the parenting proceedings were to commence, the father did not appear. Johnston J noted that shortly prior to the commencement of the hearing on 17 February 2014, the Family Court Registry received a letter from the father asking for an adjournment of the proceedings. The letter annexed the same report from the father’s psychologist dated
8 December 2013. The letter also attached a note from the father’s general practitioner in which it was said that he suffers from Rheumatoid arthritis and that on 4 February 2014 the father attended a local hospital with severe neck pain. The general practitioner’s opinion was that the father was unfit to attend court for one month.
His Honour had the benefit of medical records produced by the hospital at which the husband attended for his neck pain referred to in the general practitioner’s letter. In those notes it was said that the father attended on
4 February 2014 complaining of neck pain and, after examination, the father provided with analgesia and was released.
It is also to be observed that on 17 February 2014, on receiving the father’s letter, his Honour adjourned the matter for the morning to allow the mother and Independent Children's Lawyer to consider the letter. When the hearing resumed that afternoon, his Honour placed a telephone call to the father’s home. It was answered by a man who said that he was a friend of the father who was too ill to come to the telephone. His Honour said in his reasons:
11. … I was informed that the person was not Mr [Jarrah] but a friend of Mr [Jarrah] and that Mr [Jarrah] was not available because he was too sick. The person indicated that his name was [Mr H]. I informed the person that it was important the he convey to the father that in the event that the father did not appear at Court at 10:00 am on 18 February 2014 the mother proposed to ask the Court to hear her application as an undefended proceedings. The person at the other end of the telephone line then disengaged the service. I was informed at that point, by learned counsel for the mother, that the mother said she recognised the voice of the person at the father’s telephone service as in fact the father himself.
Johnston J refused to adjourn the proceedings which were heard in the father’s absence.
His Honour made parenting orders on 21 February 2014. His Honour ordered that the mother have sole parental responsibility for the three children, that they live with her and that they have no time with or communication with the father. He made further orders permitting the mother to change the children’s names without reference to the father.
The father has appealed those orders by a notice of appeal filed 21 March 2014 and amended on 14 April 2014.
The Registrar’s decision
On 18 June 2014, the Appeal Registrar conducted a procedural hearing at which the father attended by telephone assisted by an interpreter. At the conclusion of the hearing the Registrar made orders necessary to prepare the appeal for hearing.
On 25 August 2014, the father filed an application in an appeal supported by an affidavit and financial document seeking orders either that the Court prepare the appeal books on his behalf or that he receive an extension of time in which to prepare them.
The application stated:
1. I have struggled for the past three years in the justice system and I have run several cases by myself regarding the assault placated (sic) on my children.
2. I have spent all my money on those cases and daily living expenses, medication and transport and,
3. I am in serious financial hardship and am not able to prepare the appeal books for the expense cost,
4. I am seeking an order pursuant to Rule 22.18(2) that the appeal registrar prepare the appeal books
5. I am seeking an order for an extension of time to file the appeal books if the registrar refuses to help me.
The affidavit asserts that his income is $400 per week. The financial document also filed at the same time sets out the father’s income as $400 per week apparently from Centrelink benefits. He asserts that he pays $220 per week rent and that his personal expenses come to about $410 per week.
On 26 August 2014 the Appeal Registrar refused the father’s application that the court prepare the appeal books. She did however extend by four weeks the time by which the father was ordered prepare the appeal books. She provided reasons for her refusal.
The Review of the Registrar’s decision
On 29 August 2014 the father applied for a review of the Registrar’s determination. The application is supported by an affidavit.
Rule 22.40 of the Family Law Rules 2004 (Cth) provides for review of a Regional Appeal Registrar’s order by a judge of the Appeal Division:
A party may apply for a review of a Regional Appeal Registrar's order relating to the conduct of an appeal by filing an Application in an Appeal in the Regional Appeal Registry, within 14 days after the order is made.
The review is a hearing de novo and it is thus unnecessary for the father to demonstrate error in the Registrar’s decision. Nevertheless it is informative to consider the Registrar’s reasons.
The Registrar noted the rule relevant to the father’s application is r 22.18(2). The rule confers power on the Registrar to prepare the appeal books if the Registrar is satisfied that preparation by the appellant would impose exceptional hardship on him or her. The rule provides:
Preparation of appeal books
(1)The appellant or, if so ordered, the cross-appellant is responsible for preparing and filing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.
(2)If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare and file the appeal books:
(a)a respondent;
(b)the Regional Appeal Registrar.
(Emphasis added)
It is important to note that while the rule gives power to the Registrar to prepare the appeal books, it does not oblige her to do so.
In the Registrar’s letter of 26 August 2014 notifying the father of her decision and reasons for that decision, the Registrar noted that on 20 June 2014, the father made an application in an appeal that the court provide him with transcript. That application is listed for hearing at the same time as the appeal and will be a matter determined by the Full Court.
However, the Registrar further observed that the Court had already provided the father (and the other parties) with transcript of the proceedings before Stevenson J of 25 March 2013 and Johnston J of 31 January 2014. She noted that the only other transcript required for the preparation of the appeal books was that a short hearing before Collier J on 5 February 2014 and the transcript of the hearing before Johnston J on 21 February 2014 in which he delivered his reasons for decision.
The Registrar concluded that, even accepting the father’s asserted financial circumstances, he did not demonstrate “exceptional hardship” such as to enliven the rule.
As to the father’s application that time be extended for the preparation of the appeal books, the Registrar further noted that the father gave no indication what length of extension of time he required. She found that there was no evidence to indicate to her why his capacity to prepare the appeal books may improve over time.
In the father’s application seeking to review of the Registrar’s decision, he seeks orders that he be granted six months in which to prepare the appeal books.
The father’s affidavit in support of the Review is short. It says:
1. A Certificate from my psychologist shows the appellant is suffering from financial hardship and is struggling with the procedures and his circumstances are emotionally bad and was advised many times to take a break but he keeps trying, the last advice the 26 August shows he is in serious condition and should take a break from the procedures for at least 6 months.
2. The appellant is seeking to hold the procedure pursuant to the recommendations made in the medical certificate as he feels unable to continue.
The affidavit annexes a report from Ms C, the psychologist from whom the father is having regular counselling and who had written the earlier report to which I have referred. The report is dated 26 August 2014 and in it
Ms C 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 case. I am very concerned about his financial situation as I feel he is under resourced at the present time. I have advised him on a number of occasions to cease court procedures as I believe he is unable to cope but he is desperate to reconnect with his children. He has requested that I advise him in writing of this recommendation. I am of the opinion that a minimum 6 month break from all legal matters related to his case will assist him in his recovery.
In oral submissions the father said that he required the Registrar to prepare the appeal books because he had run out of money and was exhausted. As to the extension of time in which to prepare the appeal books, the husband said that he had, on many occasions, been advised to stop the litigation and thus sought that the appeal be, effectively adjourned for 3 to 6 months. He said that if he had a “break” from the litigation his psychological condition would improve and he could then manage the litigation better. In a somewhat histrionic submission he said that he could not do anything in preparation of the appeal because “he was scared of doing something wrong” the result of which he would go to gaol.
The father argued that he had not been provided with all the transcripts of the hearing. The father was advised that it was not unusual for parties to conduct appeals without transcript and that he had, in any event, an application for the provision of transcript which would be considered by the Full Court on the hearing of the appeal. He was further advised that if, in the opinion of the Full Court, a portion of transcript was necessary for the consideration of the appeal, the Court would order it.
Exceptional Hardship
It is first necessary to note that the power of r 22.18(2) is discretionary. Further a matter in which exceptional hardship is demonstrated must be rare. Many litigants seeking to appeal orders are in difficult financial circumstances, some of them in extremely difficult circumstances. The costs to the public purse and the court in preparing appeal books are high, thus the test for that assistance is set high, a demonstration of exceptional hardship.
No test is established to determine hardship although assistance is provided by considering other cases in which the issue was decided (see Marin & Salmon [2012] FamCAFC 157 and Xuarez & O’Halloran and Anor [2013] Fam CAFC 13).
It is first important to note the procedural history to which I have earlier referred. The hearing of these parenting proceedings was adjourned on at least three occasions on the father’s application. Indeed he appealed Johnston J’s refusal to again vacate the hearing dates of February 2014, lodged an unsuccessful appeal and then failed to appear at the hearing. The father could hardly be regarded as prosecuting the proceedings with any diligence at all.
Secondly, the ages of the children, the subject of the proceedings are important. They are quite young and have not seen their father for years.
There is no doubt that the outcome of the hearing before Johnston J is one of considerable significance both for the father and the children.
A matter relevant to this issue is a consideration of the merits of the appeal because if the appeal has no merit, a court would be unlikely to incur the cost of preparing appeal books. The father’s grounds of appeal assert a number of errors in his Honour’s reasons, several of which assert a want of procedural fairness in conducting the hearing in his absence. As this court has said of the husband on earlier occasions, procedural fairness is not his sole preserve, the interests of the mother and the children must also be considered. Of course, without argument on the issues one cannot come to a concluded view however, considering the grounds of appeal as assert a failure of procedural fairness, it is not apparent that they can succeed.
Nothing in the father’s application nor put in oral submissions persuades me that he has demonstrated exceptional hardship. That he is on Centrelink benefits, with no additional income and, at least, on the face of his financial document, his expenses exceed his income is not exceptional and, regrettably, is a common experience of litigants in this court.
I will refuse the father’s application that the Court prepare the appeal books.
The adjournment
The basis for the six month adjournment sought by the father is the opinion of his psychologist. She has been telling him it seems for some time to give himself a break from the pressures of litigation. This is not advice he has taken for himself. He continues to engage the litigation processes of this court but fails to appear to prosecute them. He, however, expects the court to act as a break on the litigation by adjourning the processes for six months. Although the father says that he believes that his psychological condition will improve if he had a six month break in the litigation process, it is difficult to understand why that would be so.
To adjourn the appeal would have an effect on the mother and children, involving the prolongation of the litigation and the uncertainty, let alone the cost to the public purse because it seems that the mother is funded by legal aid. Obviously the Independent Children's Lawyer is funded by legal aid.
If the father’s psychologist’s advice has been unheeded by him and he persists in engaging in the litigation, there is no warrant for this court to delay proceedings and, as I have indicated it would work an injustice to other parties.
The Appeal Registrar extended the time in which the father may comply with the procedural directions. No further extension or adjournment is warranted.
I will thus dismiss the father’s application in an appeal seeking a review of the Registrar’s decision.
I certify that the preceding fifty two (52) paragraphs are a true copy of the
reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 15 September 2014.
Associate:
Date: 15 September 2014