Aldrin & Celona

[2021] FamCAFC 114

FAMILY COURT OF AUSTRALIA

Aldrin & Celona [2021] FamCAFC 114

Appeal from:	Celona & Aldrin [2020] FCCA 2393
Appeal number(s):	EAA 139 of 2020
File number(s):	SYC 7481 of 2016
Judgment of:	AINSLIE-WALLACE, WATTS & AUSTIN JJ
Date of judgment:	12 July 2021
Catchwords:	FAMILY LAW – APPLICATION IN APPEAL – Where the appellant seeks to vacate the date of hearing of the appeal – Where the respondent does not consent to the application neither does she wish to be heard in relation to it – Application granted – Hearing date vacated.
Division:	Appeal Division
Number of paragraphs:	10
Date of hearing:	In Chambers
Place:	Sydney
Solicitor for the Appellant:	Konstan Lawyers
Solicitor for the Respondent:	McLachlan Thorpe Partners

ORDERS

EAA 139 of 2020
SYC 7481 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR ALDRIN

Appellant

AND:

MS CELONA

Respondent

ORDER MADE BY:	AINSLIE-WALLACE, WATTS & AUSTIN JJ
DATE OF ORDER:	12 JULY 2021

THE COURT ORDERS THAT:

1.The hearing date of this appeal listed on 27 July 2021 before the Full Court be vacated.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aldrin & Celona has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AINSLIE-WALLACE, WATTS & AUSTIN JJ

1. This appeal is fixed for hearing before the Full Court in Sydney on 27 July 2021.

2. By Application in an Appeal filed on 8 July 2021, the Appellant seeks an order that the hearing date be vacated.

3. The solicitor having carriage of the Family Law proceedings swore an affidavit in support of the application in which he deposed to having had the conduct of the matter for the appellant de facto husband since it was commenced by the respondent de facto wife in 2016. Judgment in the matter at first instance was delivered on 7 September 2020.

4. Counsel who appeared for the appellant at first instance has been instructed to appear for the appellant on the appeal and has drafted the Amended Notice of Appeal and Summary of Argument both of which have been filed. The respondent’s appeal documents were filed and served on 1 July 2021.

5. On 6 July 2021, the appellant’s solicitor was notified by the Appeals Registrar that the hearing of the appeal was listed on 27 July.

6. Neither the appellant’s counsel nor solicitor is available to attend the appeal hearing on that day, each is involved in hearings in other courts.

7. The solicitor contended that to find and brief another counsel to appear on the appeal with three week’s notice would cause the appellant’s costs of the appeal to increase significantly. Further complicating the matter would be the need for another solicitor to take over carriage of the matter and the time and cost taken to familiarise themselves with it. In short it was argued that if the date is not vacated it would result in significant prejudice to the appellant.

8. The respondent’s solicitor does not consent to the adjournment of the appeal however having been served with the appellant’s Application in an Appeal, does not wish to be heard in relation to it.

9. Having taken into account the matters contained in the affidavit of the appellant’s solicitor, we agree that in this case, given the short notice of the appeal listing, for it to be maintained would work a prejudice to the appellant.

10. We therefore grant the appellant’s application and vacate the appeal hearing of 27 July 2021.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Watts & Austin.

Associate:

Dated:       12 July 2021