Jarrah & Fadel (No 2) - [2014] FamCAFC 175

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

2011

APPEAL NUMBER:

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…

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) [2014] FamCAFC 175
Case: [2014] FamCAFC 175
Decision Date: 15 September 2014

CaseChat Overview and Summary

The case of Jarrah & Fadel (No 2) involved the father seeking a review of the Registrar’s decision concerning the preparation of appeal books. The father, who was involved in an appeal, applied for the Registrar to prepare the appeal books due to his financial hardship and emotional distress. The application was grounded on rule 22.18(2) of the court rules, which allows for the Registrar to prepare the appeal books if the appellant demonstrates exceptional hardship. The Full Court, presided over by Jayne Jagot, Chris Maxwell, and Mark Leeming, was tasked with determining whether the father's circumstances constituted "exceptional hardship" warranting the Registrar's intervention.

The legal issues before the court centred on the interpretation and application of rule 22.18(2). The court had to determine whether the father's financial hardship and emotional distress, as evidenced by a psychologist’s certificate, constituted the "exceptional hardship" required to justify the Registrar's preparation of the appeal books. Additionally, the court considered the father's lack of specificity regarding the extent of time he required to prepare the appeal books, which influenced the Registrar’s decision not to grant an extension.

The court found that while the father was indeed experiencing financial hardship and emotional distress, these circumstances did not amount to "exceptional hardship" as defined by the rule. The Registrar had already provided the father with the necessary transcripts, and the father did not specify the length of extension he required. The court held that the father's asserted circumstances did not meet the threshold for the application of rule 22.18(2). Consequently, the father’s application for the Registrar to prepare the appeal books was dismissed.

Orders

Orders of the court

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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

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.